Strasbourg, 28 September 2001Restricted
[bioethics/cdbi/docs de travail/CDBI (2001) 17
2001/draft rec psychiatry (2001)17a]

STEERING COMMITTEE ON BIOETHICS (CDBI)

Draft Recommendation Rec (...)... 
of the Committee of Ministers to member States
to ensure the protection of the human rights and dignity 
of people with mental disorder, 
especially those placed as involuntary patients 
in a psychiatric establishment

This document contains the text of the draft Recommendation as finalised by the Working Party on Psychiatry and Human Rights (CDBI-PH) at its meeting on 4-6 September 2001.

In preparing the draft Recommendation, the Working Party took into consideration the comments by the delegations as well as those from non-governmental organisations.

This draft is submitted to the CDBI with a view to its approval.  

Delegations who wish to make comments are requested to do so, in the briefest form possible, by e-mail by 31 October 2001.

Once the draft Recommendation is approved by the CDBI, it will be sent to the Committee of Ministers with a view to its adoption.

Draft Recommendation Rec (...)...
of the Committee of Ministers to member States 
to ensure the protection of the human rights and dignity 
of people with mental disorder, especially those placed as involuntary patients 
in a psychiatric establishment

( adopted by the Committee of Ministers on.., 
at the ¼ meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe,

Considering that the aim of the Council of Europe is to achieve a greater unity between its members, in particular through harmonising the laws on matters of common interest;

Having regard, in particular, to:

-  the Convention for the Protection of Human Rights and Fundamental Freedoms and to its application by the organs established under that convention;

- the Convention on Human Rights and Biomedicine of 4 April 1997 and its Protocols;

- Recommendation No R (83)2 concerning the legal protection of persons suffering from mental disorder placed as involuntary patients;

- Recommendation 1235 (1994) of the Parliamentary Assembly on psychiatry and human rights;

Having regard to the work of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment and the public consultation process initiated by the Steering Committee on Bioethics (CDBI);

Considering that common action at European level will promote the desired better protection of the human rights and dignity of persons with mental disorder, in particular those placed as involuntary patients in a psychiatric establishment;

Considering that the essence of a person’s individuality may be affected by the very nature of the mental disorder and any psychiatric intervention which may be potentially intrusive;

Underlining that professionals should be aware of this and act within a regulatory framework, should constantly review their practice and ensure that they do not, in any way, emotionally, financially or sexually exploit any patient in their care;

Considering the responsibility of professionals to guarantee, as far as they are able, the implementation and application of the principles regarding human rights which are enshrined in these guidelines, 

Recommends that the Governments of member States should review their allocation of resources to mental health services such that the provisions of these guidelines can be met;

Recommends that the governments of member States should adapt their laws and practice to the guidelines appended to this Recommendation or adopt provisions in accordance with those guidelines when introducing new legislation. 

Guidelines
Guidelines

Article 1

Object and scope of application

These guidelines are aimed at guaranteeing the protection of the human rights and dignity of people with mental disorder, especially in the following situations:

a. where a person is deprived of his/her freedom and placed as an involuntary patient in a psychiatric establishment, with a view to being treated. Involuntary placement should only take place for therapeutic reasons.  

b. where a person is subject to involuntary treatment while he/she is a patient who is subject to involuntary placement or treated as an out-patient;

Unless otherwise stated, these guidelines apply to involuntary placement and treatment decided upon or applied in both civil and criminal procedures.

Article 2
Article 2

Categories included in the concept of mental disorder 
Categories included in the concept of mental disorder 

a. According to internationally recognised definitions, the term "mental disorder" refers to  mental illness, mental handicap and personality disorders.

b. Difficulty in adapting to moral, social, political or other values, in itself, should not be considered a mental disorder.

Article 3
Article 3

Criteria for the involuntary placement in a psychiatric establishment 
	and for involuntary treatment 	

Involuntary placement and treatment should be exceptional and submitted to the following conditions, it being understood that a distinction should be made between the legal ground for involuntary placement and the legal ground for involuntary treatment and that even if the patient was admitted involuntarily, the presumption of competence to decide upon his/her treatment prevails:

a. the existence of a mental disorder should be recognised or assessment is required to determine whether a mental disorder is present;

b. The person’s condition represents a significant risk of serious harm to his/her health and/or to other persons;

c. the placement or the treatment or both are likely to be in the best interests of the person concerned; 

d. the person in question is capable of consent and does not consent to the placement or treatment or the person in question is incapable of consent and refuses placement or treatment ;

e. means of giving the patient the appropriate care- i.e. alternatives to admission to hospital which could include immediate access to the various forms of open care (eg. day hospitalisation, daily nursing support in the home, effective psychosocial treatments, social welfare assistance)-  which is less restrictive than involuntary placement are not available; member States should ensure that measures are taken to make alternatives to placement as widely available as possible. 

Article 4
Article 4

Procedures for taking a decision of involuntary placement and/or involuntary treatment

a. Involuntary placement or its extension or the administration of involuntary treatment or its extension should only occur on the basis of examination by a psychiatrist or a medical doctor having the requisite experience and competence.

b. The relevant authority or the psychiatrist or medical doctor having the requisite experience and competence who administers the treatment in case of involuntary placement or treatment should consult the family and other people close to the patient unless the patient objects to this occurring and/or practical circumstances make such consultation impossible. If there are wider issues of public safety, family members and other people close to the patient should be consulted even if the patient objects.

c. In the case of the involuntary placement or treatment of a person with mental disorder having a legal representative, the said representative should be informed and consulted.

d. The decision of involuntary placement or treatment should be taken by a relevant independent authority, which should base its decision on valid and reliable standards of medical expertise. 

e. The decision of involuntary placement or treatment should be taken promptly, be duly documented and state the duration of the said placement or treatment in conformity with national legislation. The patient should be informed promptly, regularly and appropriately of the reasons for the placement or treatment and the conditions for possible termination or extension. Under this procedure the person concerned should be able to give his/her opinion and this opinion should be taken into account. 

Article 5

Procedures for involuntary placement and treatment in case of emergency

a. In an emergency situation, the involuntary placement and treatment can take place without the relevant independent authority having taken the decision but on the basis of a valid and reliable medical opinion following medical examination of the patient with a view to the placement and treatment. 

b. The relevant independent authority should take a documented and formal decision on the involuntary placement and treatment as soon as possible, on the basis of a valid and reliable  psychiatric opinion, such as provided for by Article 4 above, and after seeking the opinion of the person concerned. 

c. The provisions of Article 4b and c should be followed as far as is possible in the circumstances.

d. When because of an emergency situation the appropriate consent cannot be obtained, any medically necessary intervention may be carried out immediately.

e. Emergency procedures should not be used with the aim to avoid applying normal procedures.

Article 6
Article 6

Involuntary treatment: specific considerations 
(whether or not in the context of involuntary placement)

a. Treatment should always be applied in response to recognised clinical signs and symptoms, have a therapeutic aim and be in the best interests of the person.
It should not only be aimed to affect the administrative, criminal, family or other situation of the patient. 

b. The treatment should always be adapted to the patient; it should always be proportionate to the patient's state of health and aim, where appropriate, at administering as soon as possible a treatment agreed by the patient.  

c. When a person is placed involuntarily, his/her ability to consent should be verified for every course of treatment envisaged.

d. A written plan of involuntary treatment should be drawn up, if possible, in consultation with the patient, his or her representative or, where there was no representative, submitted to an independent authority for decision. The plan should be reviewed regularly and open to modification at all times in consultation with the patient, his or her representative or an independent authority, as appropriate. 

e. Should the patient not consent to the said plan, he or she should be able to appeal to a court or court-like body.   

f. Each course of treatment should be recorded.  

Article 7

Special treatments
Special treatments

a. Effective medical treatment potentially serious for the person concerned, especially those with possible irreversible effects, should be the subject of ethical vigilance and special protocols.

b. Administration of electroconvulsive therapy should only be used in severe illness where there is a lack of effective alternatives. Electroconvulsive therapy should be administered in circumstances in which the dignity of the patient is always fully respected. Where exceptionally electroconvulsive therapy is given without the consent of the patient, additional safeguards should be put in place. In principle, electroconvulsive therapy should not be administrated to minors. The use of unmodified electroconvulsive therapy should be strictly prohibited.  

c. The consent of the patient is an absolute prerequisite for the use of psychosurgery. Furthermore, the use of psychosurgery should always be preceded by analysis of the risk to the patient correlated to the expected benefit of applying this technique. The decision to use psychosurgery should in every case be confirmed by a committee which is not exclusively composed of psychiatric experts. Member States which permit the use of psychosurgery should furthermore introduce a system for recording full information about any operations carried out. Lastly as regards special treatment the use of psychosurgery for minors was not envisaged.

d. There should be vigilance in regard to the use of hormones for behavioural control in mental disorders.

Article 8
Article 8

Involuntary placement and treatment of minors

a. The above conditions and safeguards relating to involuntary placement and treatment shall also be applicable to minors to the same extent at the very least.

b. Furthermore, a minor subject to involuntary placement should benefit from the assistance of a representative from the beginning of the procedure. 

c. Furthermore, the opinion of the minor should be taken into consideration as an increasingly determining factor in proportion to his or her age and degree of maturity.

d. In principle, minors should be treated and reside in separate premises from those in which adults reside, unless this is against the interest of the minor concerned. 

e. Any minor with mental disorder and placed as an involuntary patient in a psychiatric establishment should have the right to a public education. In particular, every minor should be individually evaluated and receive, if possible, an individualised educational or training programme. Teaching should be organised by the relevant education departments in consultation with the management of the psychiatric establishment. As soon as it seems appropriate, minors should be reintegrated in the general school system.
Article 9
Article 9

Involvement of the police, courts and the prison system

Police

a. As the guarantor for the respect of the security of persons and for public order, the police should have powers to intervene in situations where the behaviour of a person with mental disorder or reasonably suspected of having mental disorder represents a significant risk of serious harm to himself/herself or others according to national law.

b. In such cases, the police should coordinate their interventions with other services - medical or social - in public or private areas with respect to the dignity of the person concerned. This should occur as far as possible with the co-operation and consent of the person concerned.

c. Where arrest is necessary, it should be done by the police with respect for the dignity of the person concerned. Consideration should be given by arresting officers to the vulnerability of persons with mental disorder during police investigation and detention in police stations. If there is to be an interrogation, a representative legal or otherwise should be made available to the person concerned. If an offence is suspected, this should be dealt with promptly before a judge or other authorised officer, in accordance with Article 5, paragraph 3, of the European Convention on Human Rights.

d. Where such arrest has occurred, a medical examination should be done promptly at the site of the incident or a hospital or a police station as appropriate. The medical examination should determine whether the person requires psychiatric care and if so include medical and psychiatric assessment. The medical doctor should determine whether the person can safely remain in the police station and if he/she requires specialist psychiatric care.  

e. This medical examination should include the assessment of the capacity of the person concerned to reply to the questions raised during the investigation, in accordance with the provisions of Article 5 of the European Convention on Human Rights, and in particular of paragraph 2 thereof which provides that everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

f. Police may be required to assist in conveying or returning patients subject to involuntary detention to hospital or other care facilities.

g. Appropriate training should be given to members of the police as regards assessing and managing situations involving people with mental disorder.

Courts and prisons

h. Criteria under criminal law should  follow the guidelines elsewhere in this Recommendation with the following exceptions:

i. Consent may be given by the person concerned to placement or treatment but court may nevertheless impose placement or treatment ;

ii. Restrictions may be placed on termination of placement or treatment by the psychiatrist in charge of the care of the person and/or the independent authority.

i. Courts and court-like bodies should be able to sentence a person to placement (in a medically appropriate place), and/or treatment or discharge, with or without conditions, only on the basis of expert opinion. 

j. People with mental disorders should be treated in a medically appropriate place:

- The courts should take this into consideration in sentencing;
- Transfers between prison and hospital should occur where necessary for assessment and/or treatment to occur.

k. As regards prison care facilities:

- As stated in paragraph 13 of the Appendix to Recommendation No R (98)7 of the Committee of Ministers to member States concerning the ethical and organisational aspects of health care in prison, medical confidentiality should be guaranteed and respected with the same rigour as in the population as a whole;

- Prison should not be authorised to take people who are subject to involuntary placement or treatment under the mental health legislation, except where specially designated hospital units exist.

l. Member States should ensure that sufficient provision is made of a range of hospital accommodation with the appropriate levels of security and community-based forensic psychiatric services.

Article 10

Human Rights of people with mental disorder, 
especially those placed as involuntary patients

a. Every individual patient should be informed of their rights as a patient and should have access to a competent body within – but independent of - the mental health service. 

Civil and political rights
Civil and political rights

b. Every person with mental disorder retains those civil and political rights for which he/she has capacity to make decisions, and has the right, to the extent possible, to live and work in the community.

Environmental and living conditions

c. The environment and living conditions of a person with mental disorder  in mental health facilities should be as close as possible, bearing in mind his or her state of health and in accordance with national legislation, to those of the normal life of persons of similar age and culture, and in particular shall include vocational rehabilitation measures to promote reintegration in the community.

Least restrictive environment

d. Every patient should have the right to be treated in the least restrictive environment and with the least restrictive or intrusive treatment appropriate to the patient's health needs and the need to protect the safety of others; as soon as the patient’s health permits, he or she should be transferred to a less restrictive care facility.

e. The treatment and care of every patient should be based on an individually prescribed plan, discussed with the patient, reviewed regularly, revised as necessary, and provided by adequately qualified  staff (see also Article 6 d. above).

Confidentiality of information
Confidentiality of information

f. Except under exceptional circumstances, i.e. in the interests of public safety or as agreed for purposes of medical research, information on the patient’s health, including medical data, should remain confidential. Relevant information on the patient's health, including medical data, can  be transmitted with the consent of the patient to the medical doctor or authorised health and social care workers who may need it.

Physical restraint and to seclusion

g. The use of appropriate methods of short periods of physical restraint and the use of seclusion should be in due proportion to the benefits and the risks entailed. Thorough training in techniques of physical restraint should be provided to staff.

h. Isolation and mechanical or other means of restraint for prolonged periods should be resorted to only in exceptional cases and where there is no other means of remedying the situation. Such measures should be used only on the express order or under the supervision  of a medical doctor or immediately brought to the knowledge of a medical doctor for approval; the reasons and duration of these measures should be documented  in a register and in the patient's personal file.

Procreation and termination of pregnancy
Procreation and termination of pregnancy

i. Except in the most exceptional cases, there should be no permanent infringement of  individual's capacities to procreate or termination of pregnancy without the individual's consent. The permanent infringement of individual's capacities to procreate or termination of pregnancy should always take place in the best interest of the person concerned and be examined by a court or court-like body. The mere fact that a person has a mental disorder does not constitute a sufficient reason for causing permanent infringement to that person’s capacities to procreate or justify termination of pregnancy. 

Right to communication and visiting
Right to communication and visiting

j. The right of the person with mental disorder and placed as an involuntary patient in a psychiatric establishment to correspond with any appropriate authority, his or her representative and his or her lawyer cannot be restricted.   
 
k. The right of the patient to communicate with persons other than those referred to in paragraph j. above should not be unreasonably affected.

l. The freedom of the persons with mental disorder and placed as involuntary patients in a psychiatric establishment to receive visits should not be unreasonably restricted.  However, due consideration should be taken of the protection of vulnerable patients or minors placed in or visiting a psychiatric establishment. 

Protection of economic interests
Protection of economic interests

m. The patient's economic interests should be protected pursuant to the national legislations of member States. 

Children of people with mental disorder

n. Member States should ensure that the needs of the children of people with mental disorder are given particular consideration.

Vulnerable people with mental disorders
Vulnerable people with mental disorders

o. Member States should ensure the protection of vulnerable people with mental disorders especially those living in nursing homes or similar places who are unable to consent or resist possible infringements of their human rights
o. Member States should ensure the protection of vulnerable people with mental disorders especially those living in nursing homes or similar places who are unable to consent or resist possible infringements of their human rights
.
.

Article 11
Article 11

Discrimination against people with mental disorder
Discrimination against people with mental disorder

Member States should take measures to eliminate all discrimination, including within health services, on the grounds of past or present mental disorder or a stay in a psychiatric establishment. Member States should also encourage the development of mental health promotion programmes aiming at increasing the awareness of the public about mental disorder, especially its prevention, recognition, treatment and discrimination against people with such a disorder.  

Article 12
Article 12

Termination of the involuntary placement and/or treatment

a. Involuntary placement or treatment should be terminated when criteria for involuntary placement or treatment are no longer met.

b. The psychiatrist in charge of the care of the patient should be responsible for assessing whether the patient still meets the criteria for involuntary placement or treatment.

c. The medical doctor, the establishment and the relevant independent authority should have the competence to put an end to the involuntary placement or treatment in view of the above mentioned criteria.

d. Appropriate after-care provision for people who have been subject to involuntary placement should be put in place by member States, linking hospital and community services, inter alia, to ensure that termination of involuntary placement occurs as soon as possible and to avoid, as far as is reasonable, resorting to the involuntary placement of the person concerned in the future. The lack of services outside the establishment should not in itself  be sufficient reason to prolong the detention.

Article 13
Article 13

Review of the lawfulness of the involuntary placement and treatment
Review of the lawfulness of the involuntary placement and treatment

a. Patients should be able to request at reasonable intervals the review of the lawfulness of involuntary placement and treatment by a court or court-like body.

b. If a patient does not request the review of the lawfulness of the involuntary placement or treatment , an ex officio review of the lawfulness by the independent authority (preferably a court of court-like body) should take place at regular and reasonable intervals.

c. In the proceedings before the court or court-like body the person placed or treated as an involuntary patient has the right to be heard either in person or, where necessary, through a representative.

d. Where appropriate, the person placed or treated as an involuntary patient has the right to have legal counsel if he/she is not fully capable of acting for himself/herself, without the need himself to take the initiative in obtaining legal counsel. Free legal aid should be available for the providing of legal counsel, according to national law.

e. Consideration should be given to providing legal counsel automatically in all procedures before a court or court-like body  with regard to involuntary placement and treatment.

f. The person placed or treated as an involuntary patient or his/her representative shall have access to all the materials before the court or court-like body, and should have the right to challenge the evidences before the court or court-like body.

g. The judicial review by a court or court-like body should ensure the lawfulness of the procedure followed throughout and check whether the criteria for involuntary placement or treatment continue to be met. The court or court-like body should have full knowledge of the factual and legal elements and should be able to freely review the decision taken by the relevant independent authority.

h. The court or court-like body should give its decision speedily, after the moment when the application for release or termination of treatment was lodged , identify any violations of national legislation in force in the field of involuntary placement and treatment and send these to the relevant body. 

i. An adequate legal remedy against the decision of the court or court-like body should be established.

Article 14
Article 14

Setting-up and monitoring of quality standards 
for the implementation of mental health legislation

a. The systems for the setting-up and monitoring of quality standards for the implementation of mental health legislation should:

i. be provided with sufficient financial and human resources to perform their tasks;

ii. be organisationally independent from the management of the Mental Health Services or premises which are being monitored;

iii. be coordinated between themselves and with other audits and quality assurance services;

iv. professionals, both psychiatrists and non-psychiatrists, as well as lay-persons and users should be involved in the system for the setting up and monitoring of quality standards for the implementation of mental health legislation.

b. Arrangements for the setting-up and monitoring of quality standards should include:

i. ensuring that persons with mental disorders are not detained in premises which are not registered by the appropriate authority;

ii. notifying to the appropriate authority the death of persons subject to involuntary placement or treatment; ensuring that  powers exist to order an investigation into the death of a patient and  that an independent investigation of the local mental health services into the death of the person concerned has occurred;

iii. visiting and inspecting such premises to establish their suitability for the care of patients with mental disorder, at any time and, where deemed necessary, without prior notice;

iv. users of services should be involved in visiting and inspecting local Mental Health Services to establish that suitable alternatives to detention in hospital are provided for the care of patients with mental disorder;

v. the managers of the mental health services or premises and staff who treat, nurse or care for those persons subject to mental health legislation provide any information required in so far as this may reasonably be deemed necessary for the purposes of setting-up and monitoring quality standards;

vi. meeting privately with patients subject to provisions of Mental Health legislation  and accessing their medical and clinical file at any time;

vii. receiving complaints confidentially from any such patients and ensuring that local complaints procedures are in place and that complaints are appropriately replied to;

viii. reviewing situations in which restrictions to communication have been applied;

ix. ensuring that relevant professional obligations and standards are met, in accordance with article 4. of the Convention on Human Rights and Biomedicine and the relevant paragraphs of its explanatory report (articles 28 to 32);

x. ensuring that statistical information on the use of Mental Health legislation and complaints is collected reliably and systematically;

xi. providing a report regularly (usually annually) to those, up to and including the Minister, responsible for the care of patients with mental disorder, who should consider publishing the report; in case the report itself is not published, information should nevertheless be given to the general public by the chief official of the State of such matters as the mental health of the society, activities for improving the life quality of people with mental disorder and the conditions of their treatment;

xii. advising those, up to and including the  Minister, responsible for the care of patients with mental disorder, on the conditions and facilities appropriate for such care;

xiii. ensuring that those, up to and including the Minister, responsible for the care of patients with mental disorder, respond to questions raised during the visits and, at a later stage, to advice and reports arising from the arrangements for the setting-up and monitoring of quality standards. The arrangements for the setting-up of quality standards should ensure that follow-up action is taken.

Appendix to the Recommendation
Appendix to the Recommendation

GLOSSARY
GLOSSARY

ADVERSARIAL PROCEDURE: Means that no one can be judged without having been heard by the court or called before it. The provisions of Article 6 of the European Convention on Human Rights could be used as guidelines in this context. 

COURT OR COURT-LIKE BODY ( TRIBUNAL): Article 6 of the European Convention on Human Rights refers to  "an independent and impartial tribunal established by law".  The " right to a court" can be seen to have three elements to it. There should be a "tribunal" established by law and meeting the requirements of independence and impartiality; it should have sufficiently broad jurisdiction to determine all aspects of the dispute or charge to which Article 6 applies; the individual concerned should have access to the tribunal. According to the European Court of Human Rights, the "tribunal" is characterised by the fact that it is a body with a judicial function, namely determining matters within its competence on the basis of rules of law and after proceedings conducted in a prescribed manner. It should have power to give a binding decision on the matter before it.

RISK:  Risk can be interpreted as the chance that harm will occur

INVOLUNTARY PLACEMENT: Involuntary placement means the admission and detention for treatment of a person with mental disorder in a hospital, other medical establishment or appropriate place, it being understood that the person in question  is capable of consent and does not consent to the placement or the person in question is incapable of consent and refuses placement.

INVOLUNTARY TREATMENT: This term covers the management of a person with mental disorder and any intervention- whether of a physical, psychological or social nature- having a therapeutic aim, it being understood that the person in question is capable of consent and does not consent to the treatment or the person in question is incapable of consent and refuses treatment.  

MEDICAL DOCTOR HAVING THE REQUISITE EXPERIENCE AND COMPETENCE: Medical doctor who is not necessarily a psychiatrist , as this may well be the case in emergency situations, but who has sufficient experience to deal with the medical and administrative issues raised in the case of involuntary placement or treatment

MENTAL DISORDER: This term refers to mental illness, mental handicap and personality disorder.

PSYCHIATRIST: Medical doctor with special expertise in assessment, diagnosis and treatment of mental disorder 

REASONABLE TIME: Whether the period in question is "reasonable" depends on the particular circumstances. Account should be taken of the complexity of the case and the conduct of the applicant and the authorities.

RELEVANT INDEPENDENT AUTHORITY: This term covers either a court or court-like body, or another independent authority. The independence of the authority is verified by the fact that it is a different authority than the one which proposes the measure and by the fact that its decision is a sovereign decision not influenced by instructions from any source whatsoever.

TREATMENT: This term covers the management of a person with mental disorder and any intervention- whether of a physical, psychological or social nature- having a therapeutic aim.

EXPLANATORY MEMORANDUM
EXPLANATORY MEMORANDUM

A. General considerations

On 22 February 1983, the Committee of Ministers of the Council of Europe adopted Recommendation No R (83)2 to member States on legal protection of persons suffering from mental disorder placed as involuntary patients.

On 12 April 1994, the Parliamentary Assembly of the Council of Europe adopted Recommendation 1235 (1994) on psychiatry and human rights, in which it invited the Committee of Ministers to adopt a new Recommendation based on the rules appearing in the said text.

Following this Recommendation of the Parliamentary Assembly, the Committee of Ministers created a Working Party on Psychiatry and Human Rights (CDBI-PH), which is a subordinate body of the Steering Committee on Bioethics (CDBI). 

The terms of reference of the Working Party on Psychiatry and Human Rights (CDBI-PH) read as follows: " Under the authority of the Steering Committee on Bioethics (CDBI) and in the light of Committee of Ministers' Recommendation No R (83)2 on legal protection of persons suffering from mental disorder placed as involuntary patients and of Parliamentary Assembly Recommendation 1235 (1994) on psychiatry and human rights, to draw up guidelines to be included in a new legal instrument of the Council of Europe. These guidelines should aim to ensure protection of the human rights and dignity of people with mental disorder, especially those placed as involuntary patients, including their right to appropriate treatment.".    These guidelines were considered necessary because of the exceptional nature of involuntary procedures that can be used for the placement and treatment of people with mental disorder and therefore the exceptional need for the protection of their rights.   

The person’s most intimate self may be disclosed and his/her behaviour, mental functions and family or social ties may be affected by the mental disorder, as well as by psychiatric assessments and interventions, with their subjective components.

During its work, the CDBI-PH constantly kept in mind the necessity of protecting the human rights of persons placed in psychiatric establishments, which, in the past, were frequently violated; in this context, the CDBI-PH duly took account, inter alia, of the provisions of Article 5, paragraph 4, of the European Convention on Human Rights which reads as follows: "Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful" and of the Declaration of Madrid by the World Association of Psychiatry. 

During its consideration of the issue of involuntary placement and treatment, the CDBI-PH also underlined that no matter what independent bodies supervise this restriction of freedom, they do not relieve the therapists and professionals in direct contact with people with mental disorder of the ethical and legal considerations which should constantly accompany them in their work. It is the duty of all psychiatrists responsible for taking major decisions for their patient's future to constantly back up their opinions, through dialogue and transparency concerning the approach adopted, vis-à-vis their peers, their patients and the community at large.

The CDBI-PH benefited from the valuable experience of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT). In particular, it held an exchange of views with its first Vice-President and with an expert to the CPT. Furthermore, part III of the 8th general report on the CPT's activities covering the period 1 January to 31 December 1997 (document CPT/Inf (98)12) is devoted to involuntary placement in psychiatric establishments.

B. Comments on the Recommendation

Article 1
Article 1

Object and scope of application

Involuntary placement should only take place for therapeutic reasons.  The mental health system should not be used for custodial purposes in the absence of therapeutic intent even where there is significant  risk of serious harm to others.  In these circumstances within the limits that criminial law allows, appropriate provision should be made under the criminal justice system.
Involuntary placement should only take place for therapeutic reasons.  The mental health system should not be used for custodial purposes in the absence of therapeutic intent even where there is significant  risk of serious harm to others.  In these circumstances within the limits that criminial law allows, appropriate provision should be made under the criminal justice system.

The term “treatment” is used in its broad sense and covers, in general, the management of mental disorder and any intervention – whether of a physical, psychological or social nature - having a therapeutic aim.  In all cases placement should be part of a comprehensive therapeutic plan designed to meet the person’s needs, even though it may constitute treatment in its own right.

Article 2
Article 2

Categories included in the concept of mental disorder
Categories included in the concept of mental disorder

Paragraph a.

The definitions of mental disorder proposed by the World Health Organisation and the American Psychiatric Association specify no precise boundaries. Mental disorders can not be classified with absolute precision.

However, involuntary placement and treatment is only appropriate with regard to certain types of mental disorder, eg. some people with psychoses or severe neuroses, certain types of  personality disorder and mental handicap.   Clinical experience has shown that people who abuse alcohol and drugs have generally not shown a sustained response to involuntary placement or treatment.  Such measures should therefore only be used in exceptional circumstances by medical specialists in the treatment of people who misuse drugs or alcohol. 

Persons with a mental handicap sometimes exhibit behaviour which is seriously aggressive and/or irresponsible. Such behaviour may or may not be associated with mental illness. However, the application of mental health legislation may  occasionally be necessary in the absence of less restrictive alternatives.  It should also be noted that while the WHO International Classification of Mental and Behavioural Disorders (ICD 10) uses the expression “mental retardation”, most countries use either "mental handicap" or "learning disability". 

In respect of personality disorders, it should be underlined, as was done by the European Court of Human Rights in its judgement in the Winterwerp case, that: "... Article 5.1 obviously cannot be taken as permitting the detention of a person simply because his views or behaviour deviate from the norms prevailing in a particular society." (Publications of the European Court of Human Rights, Series A. vol. 33§33).

Paragraph b.

It was felt that involuntary placement and treatment should under no circumstances be used for political ends.  Particular reference is made to Article 2 of Recommendation No. R (83) 2 of the Committee of Ministers to Member States concerning the legal protection of persons suffering from mental disorder placed as involuntary patients which states that “Difficulty in adapting to moral, social, political or other values, in itself, should not be considered a mental disorder.”

Article 3

Criteria for the involuntary placement in a psychiatric establishment 
and for involuntary treatment 

Introduction and paragraphs a., b. and c.

It appeared advisable to retain the criterion of the exceptional character of involuntary placement , as suggested by the Parliamentary Assembly in its Recommendation 1235 on psychiatry and human rights, as well as the criterion of the recognised existence of a mental disorder. It also appeared advisable to retain the criterion of the exceptional character of involuntary treatment.

Furthermore,  the involuntary placement as such does not mean that the patient can in any event be treated against his/her will. The presumption of the competence of the patient to decide upon his/her own treatment means that the patient admitted against his/her will shall be deemed competent to decide upon his/her own treatment until the contrary was proven.

Risk can be interpreted as the chance that harm, be it physical, psychological or economic, will occur. It was underlined that risk assessment, contrary to what is sometimes assumed, is not an exact science. Furthermore, it was felt that where the potential risk is greater with one threatened action than another (eg. arson as compared to physical aggression), involuntary placement or treatment may be used even where the actual chance of the former occurring is less than that of the latter . One should  not have the power to deprive people of their liberty or to administer them an involuntary treatment without valid reason; any deprival of liberty and administration of an involuntary treatment should always be accompanied by procedures to protect the rights of the person concerned. 

Furthermore, under no circumstances should a doctor be expected to dispense treatment which was not likely to be in the best interests of the person concerned. In this context, it was underlined that emphasis should be put on therapeutic intent rather than on prior evidence of efficacy of the treatment. It was also stressed that for some difficult to treat patients, treatment might be necessary to prevent a deterioration of their condition, rather than to completely alleviate it. 

Paragraph d.

It was underlined that involuntary placement or treatment could in particular be used in certain cases where, for instance, the person concerned has already been admitted to hospital voluntarily or does not persistently agree to the measure and may therefore change his/her mind frequently as to his/her agreement to placement or treatment.

One needs to distinguish between people capable of consent who do not consent and those who are unable to consent but who do not express objection to the placement or treatment. It was noted in this respect that the fact that a person was unable to consent did not require him/her to be detained or treated using procedures for involuntary placement or treatment. Hence the expression "the person in question does not consent to the placement or treatment" applied in principle to persons who are capable of consent. This does not affect procedures for the placement and treatment of persons unable to consent.

Paragraph e.

Prevention of deterioration and early intervention in order to maintain or improve the patient's state of health require a range of accommodation, employment and therapeutic options to be readily available, taking into account cultural considerations or needs of individuals with sensory impairments. Admission facilities should be local to individual's homes and of a reasonable standard.

Article 4
Article 4

Procedures for taking a decision of involuntary placement and of involuntary treatment

Paragraphs a. and b.

In circumstances other than emergencies, the person concerned should be examined by a psychiatrist or a medical doctor having the requisite experience and competence, in particular as regards risk assessment, in order for a decision on placement or extension of placement or on administration of treatment or extension of treatment to be taken.  Other authorised professionals (including clinical psychologists) may also be required to provide supporting evidence from their examination of the patient for this purpose.

It was noted that the European Court of Human Rights had never required the initial placement decision to be taken by a court or court-like body. The relevant question is the independence of the body or authority which takes the decision of placement. It was therefore agreed that it should be possible for the decision to be taken by a "relevant independent authority", the independence of which could be verified by the fact that it was a different authority than the one which proposed the measure and by the fact that its decision was a sovereign decision not influenced by instructions from any source whatsoever. Furthermore, such an authority should ensure that social care aspects are duly taken into consideration. 

The question of the role of the family and other people close to the patient in taking decisions concerning involuntary placement or treatment was considered. It was acknowledged that contact with the family and other people close to the patient was useful. It was also pointed out, however, that the interests of the members of the family or other people close to the patient were sometimes not necessarily those of the patient. There was always the possibility that families or other people close to the patient might attempt to have someone put into placement or treated wrongfully. So in order to provide effective protection of the fundamental rights of the person concerned, it was decided that the requirement should be limited to consulting the family and other people close to the patient only if the patient does not object or if there are wider issues of public safety which means that family members and other people close to the patient can be consulted without the patient's consent, unless practical circumstances, such as distance, made such consultation impossible. 

Paragraph c.

It was felt that it was up to the patient or his or her close family or friends to inform the relevant authority –in case of involuntary placement- or the psychiatrist or doctor having the requisite experience and competence who administers the treatment- in case of involuntary treatment- of the identity of the patient’s legal representative so that the latter could be  informed and consulted by the authority or the doctor, it being understood that the legal representative would not necessarily be a lawyer. It would also be desirable that in the case of the involuntary placement or treatment of a person with mental disorder having no legal representative, the person be offered the assistance of such a representative. It was however recognised that it would be difficult to implement such a process universally under current circumstances. It was further noted that, except in cases where the best interests of the person concerned so require (for example in cases where the person suffers from such a serious mental disorder that he/she needs a guardian), the assistance of a legal representative should not be compulsory.   

Paragraph d.

Furthermore, the requirement of reliable medical expertise has been added to that of objective medical expertise enshrined in the case-law of the European Court of Human Rights.

Paragraph e.

This provision is based in particular on the provisions of Article 5, paragraph 2, of the European Convention on Human Rights ("Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charges against him") and on the case-law of the Convention organs, particularly the judgments of the European Court of Human Rights in the X. v. the United Kingdom case of 5 November 1981 (Series A, vol. 46, §65-66) and the Van der Leer case of 21 February 1990 (Series A, vol. 170, §27-28). 

Article 5

Procedures for involuntary placement and treatment in case of emergency

Cases of emergency are cases in which an immediate danger to the person concerned and/or to others exist and where the opinion of a psychiatrist can not be obtained immediately.  When drafting this provision, it was felt that it was neither reasonable nor advisable, inter alia because of the immediate danger to the person concerned or/and others, to await the placement or treatment decision of the relevant authority; even the case-law of the European Court of Human Rights required no prior decision by the relevant authority in an emergency situation (paragraph 41 of the judgment of 5 November 1981 of the European Court of Human Rights in the X. v. the United Kingdom case stated that "the Winterwerp judgment expressly identified "emergency cases" as constituting an exception to the principle that the individual concerned should This provision reproduces part of the text of Article 8 of the Convention on Human Rights and Biomedicine.
not be deprived of his liberty "unless he has been reliably shown to be of 'unsound mind'"; .... neither can it be inferred ... that the "objective medical expertise" should in all conceivable cases be obtained before rather than after confinement of a person on the ground of unsoundness of mind.... Where a provision of domestic law is designed .... to authorise emergency confinement of persons capable of presenting a danger to others, it would be impracticable to require thorough medical examination prior to any arrest or detention.").

Furthermore, when taking its decision, the relevant authority should also bear in mind the other possibilities offered by the community (day hospitalisation, effective psychosocial treatments, social welfare assistance, etc), having regard to any change in the patient's state of health following the placement.

This provision reproduces part of the text of Article 8 of the Convention on Human Rights and Biomedicine.

Article 6
Article 6

Involuntary treatment: specific considerations 
(whether or not in the context of involuntary placement)

Paragraph a.

Although it was considered that it was important to take into consideration the social situation of the person concerned, it was underlined that the latter did not constitute the first priority. Hence, treatment should have no other aim than the treatment of the signs and symptoms. It should correspond to a medical need rather than to a social, family or economic need. 

Paragraphs b. and c.

The treatment should always be adapted to the patient; it should always be proportionate to the patient's state of health and aim, where appropriate, at administering as soon as possible a treatment agreed by the patient.  

It was considered that only officially recognised pharmaceutical products should be used involuntarily and that in view of the extensive, and frequently excessive, use of medication, side effects and dosage regimes should be carefully monitored such that doses could be reduced as soon as therapeutically appropriate. Furthermore, importance should be accorded to the provision of group therapy, psychotherapy, music therapy, theatre, sport activities, etc., and opportunities for daily physical exercise. Lastly, education was considered to be an important component of daily living activities.

Paragraph d.

Such a plan should be drawn up by the doctor treating the patient or, at least, by a doctor involved in the plan.

Paragraph e.

This provision aims at enhancing the protection of the person concerned, in compliance with the provisions of Article 6 of the European Convention on Human Rights.

Paragraph f.

The implementation of this provision should however not generate too much bureaucracy.

Article 7
Article 7

Special treatments

Research into electroconvulsive therapy has shown it to be effective in severe depressive illness, for example. However it was felt that only modified electroconvulsive therapy – ie administered in conjunction with an anaesthetic and muscle relaxants – was acceptable. Furthermore, it was underlined that electroconvulsive therapy should only be administered in circumstances in which the dignity of the patient is always fully respected. 

In those rare and exceptional circumstances where consideration is given to the administration of electroconvulsive therapy to minors, this should be subject to the same safeguards as for psychosurgery. Due regard should be given to any requirement for emergency treatment , but this should not be used to bypass the above procedures.  Any such use should be subject to appropriate research and communication to the international scientific community.

The efficacy of psychosurgery has not yet been established because of limited  research and it is for this reason and because of its irreversible nature that additional safeguards are proposed.   Again any such use should be subject to appropriate research and communication to the international scientific community.

There should be vigilance in regard to the use of hormones for behavioural control in mental disorders, e.g. for control of sexual function.
  
It was stressed that the means referred to in Article 7 were only some examples of special treatment and that this list was in no way an exhaustive one, as others may be developed in the future.

Article 8
Article 8

Involuntary placement and treatment of minors

Paragraph a.

With regard to the definition of minors, it was felt that reference should be made to national legislation in force and that this category would include persons considered to be minors under the terms of their national legislation. It was thought that protection measures for minors should be more stringent than those for adults.  This is why the guideline states that the conditions and safeguards relating to involuntary placement and treatment should, at the very least, be the same as those applicable to adults. 

Paragraph b.

Account has been taken of the fact that minors may not be able to represent themselves; this is why the above guideline advocates, in all cases, the assistance of a representative from the beginning of a procedure.  It was considered that such a representation should not necessarily be undertaken by a lawyer, but for example, a family member – providing there is no conflict of interest with the minor – or a social worker.  Where such conflict of interest exists, provisions under national legislation should apply.

Paragraph c.

This provision reproduces partly the text of Article 6, paragraph 2, of the Convention on Human Rights and Biomedicine.

Paragraph d.

It was however noted that in some exceptional cases it might be in the minor's best interest to reside in an adult unit close to home - thus promoting contact with the family - rather than in a child and adolescent unit a long way from home.

Paragraph e.

This provision is based on the 1986 study by the Special Rapporteur of the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities, and in particular Article 43 of the draft principles appended thereto, as well as the relevant provisions of the United Nations Convention on the Rights of the Child.

Article 9
Article 9

Involvement of the police, courts and the prison system

Paragraph a.

Intervention may include arrest or entry into premises according to national law. In this context, reference is made, in particular, to the work published in 1984 by the Council of Europe under the title "Human Rights and the police", especially Part II.2, 6 and 12 thereof relating to arrest, entry and search of premises and seizure of goods and use of force.

Paragraph b.

In such cases, the police should coordinate their interventions with other services - medical or social - in public or private areas with respect to the dignity of the person concerned. This should occur as far as possible with the co-operation and consent of the person concerned.

Paragraphs c., d. and e.

It is underlined that the term "promptly" used in paragraph c. should be understood within its meaning under Article 5, paragraph 3, of the European Convention on Human Rights, which provides inter alia that everyone arrested or detained ¼ shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Paragraph e. aims at guaranteeing that the person concerned is in a position to understand the questions raised by the police and to reply to them and that, if this is not the case, his/her rights are duly respected.

Paragraph f.

 The mission referred to in paragraph f. is part of the general mission of the police, i.e. to be the guarantor for the respect of the security of persons and for public order.

Paragraph g.

Such training should be provided in consultation with the local mental health services and include basic guidance on recognition and management of people suspected of having a mental disorder with regard to relevant legislation.

Paragraph h (i.)

According to national law, in certain countries, if the person concerned gives his/her consent, the court does not issue any order for the purpose of involuntary placement or treatment ; however, in other countries, the consent of the person concerned is not taken into consideration by the court which, in any event, delivers an order for involuntary placement or treatment, to ensure that the placement or treatment duly occurs ( for instance in cases where, after having agreed to placement or treatment, the person concerned would change his/her mind). 

Paragraph h (ii.)

As with civil proceedings, termination of placement or treatment should occur when criteria are no longer met ( see Article 12). The individual may request review of the legality of his placement or treatment and ex officio review should occur where they do not (see Article 13).

Paragraph i.

Courts should take into account whether a person has a mental disorder which has diminished their criminal responsibility. Any recommendation which is then made for placement and/or treatment or conditional discharge should be made with the support of expert psychiatric opinion.

Where a person deemed unfit to plead through mental disorder is involuntarily placed or treated, specific attention needs to be given to regular review of their placement and treatment (see Article 13).

Paragraph j.

People with mental disorders may be treated in the community, normal prison facilities or psychiatric establishments, both civil and secure (outside prison or in specialised prison facilities subject to Recommendation No R (98)7 of the Committee of Ministers to member States concerning the ethical and organisational aspects of health care in prison(paragraph 55 of the Appendix thereof)). The indications for treating in different settings include the severity of the mental disorder or its treatability. Substance abuse (of alcohol and/or drugs) or personality disorder may be considered treatable in any of the above settings, but this will be dependent on expert psychiatric opinion following examination of the individual concerned. 

A prisoner (or his/her legal representative) who considers that the care given in prison is inappropriate to his/her condition or who considers that his/her condition is incompatible with a prison environment should be able to ask for appropriate care or transfer. If such care or  transfer is denied, an effective appeal system should be made available. 

Paragraph k.

When such units exist within a prison, the national monitoring body should be responsible for their registration and monitoring. Such units should be located in separate prison premises and not under the direction of  prison authorities.

Paragraph l.

Many countries have people with mental disorders detained in prisons who require treatment in hospital. The failure to transfer them may involve failure to identify them within the prison population but also insufficient or inappropriate secure hospital accommodation or the reluctance of local mental health services to accept them. Member States should put into place mechanisms to overcome these infringements of individuals' human rights.

Article 10

Human Rights of people with mental disorder, 
especially those placed as involuntary patients

Paragraph a.

It was considered that upon arrival in the psychiatric establishment and when involuntary procedures are used, if this is later, the person concerned should be duly informed of his/her rights as a patient. This information should be provided to the person in written form. Furthermore, the importance of the existence of an independent body within the mental health service and of the information of the patient about its existence, as well as about the means to have access to it, was underlined. 

Paragraph b.

Due account should be taken of the provisions of Articles 8 and 10 of the European Convention on Human Rights, as developed and interpreted by the case-law of the European Court of Human Rights.

Reference should also be made to certain provisions of the draft Recommendation on principles concerning the legal protection of incapable adults, which, although dealing with related problems, may be of some assistance with regard to the above guideline, in particular Principle 3 which states that the person concerned “should not automatically [be deprived] of the right to vote, or to make a will” and that he or she “whenever possible ¼ should be enabled to enter into legally effective transactions of an everyday nature”. It was furthermore thought that when the patient had no capacity to make decisions, suitable provisions should be made to have his/her affairs  managed in his/her best interest.

Paragraph c.

In this context, the utmost attention should be paid to paragraphs 34 to 36 of the 8th general report on the activities of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) (document CPT/Inf (98) 12) which draw attention to a number of factors which can create a positive therapeutic environment for persons placed as involuntary patients in a psychiatric establishment.  These include: sufficient living space per patient as well as adequate lighting, heating and ventilation; decoration of both patients’ rooms and recreation areas in order to give patients visual stimulation; the provision of bedside tables and wardrobes; allowing patients to keep certain personal belongings; the preservation of a degree of privacy; individualisation of clothing; adequate food from the standpoint of quantity and quality, provided under satisfactory conditions; the particular needs of disabled persons in relation to catering arrangements should also be taken into account; large-capacity dormitories depriving patients of all privacy should be avoided; patients who so wish should be allowed to have access to their room during the day rather than being obliged to remain assembled together with other patients in communal areas, etc. 

Paragraph d.

The provisions of this paragraph are based in particular on Principles 3, 9 and 13 of Resolution A/RES/46/119 of 17 December 1991 of the General Assembly of the United Nations on the protection of persons with mental illness and the improvement of mental health care.

Paragraph e.

It was thought that staff qualifications should be registered with professional bodies and staff, themselves, should participate in programmes providing continuing professional development.

Paragraph f.

It was considered that the respect for people's private lives enshrined in Article 8 of the European Convention on Human Rights should be reflected in observance of the confidentiality of patient's files. Reference is also made to Article 10 of the Convention on Human Rights and Biomedicine which states that “Everyone has the right to respect for private life in relation to information about his or her health” and the Appendix to Recommendation No. R (97) 5 of the Committee of Ministers to member States on the protection of medical data, and in particular principles 3 and 7. It was considered that, with due respect to the provisions of the above-mentioned instruments, relevant information on the patient's health, including medical data, could be transmitted with the consent of the patient to the medical doctor or authorised health and social care workers who may need it. Furthermore, it was stressed that the exceptional circumstances referred to in the above guideline should only cover the interests of public safety.

Paragraph g.

When drafting this provision, it was felt that the response to violent behaviour by the patient should be graduated, ie that staff should initially attempt to respond verbally; thereafter, only in so far as required, by means of manual restraint; and only in a last resort by mechanical restraint. It was also underlined that physical restraint should always be used within the framework of the treatment. In other words, when it is used, physical restraint should be seen as being a part of the treatment.

Paragraph h.

This provision takes into account, in particular, the recommendations made in the published reports of the Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT).

Paragraph i.

Bearing in mind modern contraceptive methods and monitoring means, there are few circumstances in which it is not possible to prevent conception without recourse to methods causing permanent infringement of an individual’s capacities to procreate.    However where pregnancy does occur, the mere fact that a person has a mental disorder does not constitute a sufficient reason to justify termination of pregnancy  without the person’s consent. It is for this reason that special provision should be made where this is considered. 

Paragraph j.

It was recalled that when the Committee of Ministers had adopted Recommendation No. R(83)2 to member States concerning the legal protection of persons suffering from mental disorder placed as involuntary patients, one delegation had reserved the right of its government to comply or not with Article 6 of the Recommendation and several delegations had reserved the right of their governments to comply or not with Article 6.b.

Article 6 of the Recommendation reads as follows:

"The restrictions on personal freedom of the patient should be limited only to those which are necessary because of his state of health and for the success of the treatment; however, the right of a patient:

a. to communicate with any appropriate authority, the person mentioned in Article 4 and a lawyer, and

b. to send any letter unopened;

should not be restricted.".

It was considered that the principle established in Article 6.a. was absolute, and that as a result no restrictions on correspondence with the lawyer or the appropriate authority, including  the European Commission of Human Rights or the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) would ever be necessary or appropriate.

Paragraph k.

When drafting this provision, it was pointed out, however, that in certain cases and in compliance with the relevant provisions of the house rules of the psychiatric establishment concerned, it might prove necessary to restrict these rights where failure to do so could be harmful to the patient's health or to the rights and freedoms of other people: one example mentioned was that of repeated unpleasant telephone calls or letters to members of the family or acquaintances of the patient, which could be a source of harassment and considerable tension. In this respect, it was noted that Article 8, paragraph 2, of the European Convention on Human Rights permitted interference with the right to respect for correspondence when this was provided for by law and was necessary in a democratic society for the protection of the rights and freedoms of others.  House rules of the psychiatric establishment used in this context should be subject to appropriate independent authorisation.

It was also mentioned that, for example, where the patient was suspected of drug-trafficking, some degree of censorship might be imposed; another example might be where someone affected by manic depression writes and intends to send a letter of resignation to their employers. Indeed, in such a case, this letter could be retained until their medical conditions improve and any mail should be opened in the patient's presence. It was also felt that measures such as the searching of patients and their rooms, random urine drug tests and listening to patients' phone calls should be applied in compliance with the house rules of the psychiatric establishment concerned. 

In the light of the above, it was felt that special rules could be established for persons in involuntary placement, provided that these rules were not in contradiction with the provisions of Article 8, paragraph 2, of the European Convention on Human Rights (reproduced in Article 26 of the Convention on Human Rights and Biomedicine). It was also considered that the freedom to use the telephone should be exercised in keeping with the house rules of the establishment concerned.

In conclusion, it was agreed that restrictions on the right to communication should be possible only in absolutely exceptional cases, in order to prevent offences or to avoid serious harm to the health or future prospects of the person concerned. The patient should be informed of any such restrictions in order to allow him or her to challenge them in a court or court-like body.

With regard to communication from outside, it was stressed that nothing should hamper communication between the outside and the psychiatric establishment or the patient’s right to receive information from outside.

Paragraph l.

It was felt that the freedom of the patient to communicate with visitors should be exercised in keeping with the house rules of the establishment concerned and that in this respect no distinction should be made between psychiatric establishments and other hospital establishments. However, attention was drawn to the protection of vulnerable patients or minors placed in or visiting a psychiatric establishment who might be exploited during visits and of the existence of limited visiting rights for certain patients and in certain care facilities.

Paragraph m.

It was underlined that when a person with mental disorder, he/she might endanger his/her future economic situation. National legislations of member States should consequently provide measures aiming at guaranteeing and protecting the economic situation of people with mental disorder, e.g. through guardianship or other appropriate means. National legislations of member States should also make available measures to protect the interests of people with mental disorder as regards their future situation in the field of employment and family life.
It was underlined that when a person with mental disorder, he/she might endanger his/her future economic situation. National legislations of member States should consequently provide measures aiming at guaranteeing and protecting the economic situation of people with mental disorder, e.g. through guardianship or other appropriate means. National legislations of member States should also make available measures to protect the interests of people with mental disorder as regards their future situation in the field of employment and family life.

Paragraph n. 

Member States should ensure that the needs of the children of people with severe mental disorder are given particular consideration because of possible effects on their parents’ capacity to provide the necessary parenting functions.

Paragraph o.

Member States should ensure the protection of vulnerable and /or dependant people with mental disorders, such as those with dementia, mental handicap or long term psychotic disorders, especially those treated in nursing homes or similar places who are unable to consent or resist possible infringements of their human rights. Such infringements can also occur in people’s own homes.

Article 11
Article 11

Discrimination against people with mental disorder

When considering this provision, it was felt that it was primarily up to the member States themselves to take measures to eliminate discrimination against people with mental disorder.  Here Article 14 of the European Convention on Human Rights and the case-law of the European Court of Human Rights are of particular significance.  (Article 14: “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”)

Discrimination against people with mental disorder may, for example, appear in the following forms: the incorrect use (for situations where it is not relevant) of the term “schizophrenia” in the media, the opposition from residents to the building in their neighbourhood of a centre for people having been in a psychiatric establishment, discriminatory practices concerning employment of patients or former patients, discriminatory practices concerning insurance, less financial and technical means in favour of psychiatric establishments or services of general hospitals where people with mental disorder are treated, etc.. Furthermore, member States should more specifically draw the attention of governments and relevant public and State institutions to the role of the State in promoting mental health and improving and maintaining the treatment and life quality of people with mental disorder. Programmes for mental health promotion can assist in prevention and early intervention and should be established by member States.

Article 12
Article 12

Termination of the involuntary placement and/or treatment

Termination of  involuntary placement or treatment should occur as soon as the person does not meet the criteria for involuntary placement or treatment.

Article 13
Article 13

Review of the lawfulness of the involuntary placement and treatment
Review of the lawfulness of the involuntary placement and treatment

The court or court-like body, pursuant to Articles 5 and 6 of the European Convention on Human Rights and the case-law of the European Court of Human Rights thereon, must decide as soon as possible and use adversarial procedure.

It was thought that the patient's treating doctor should be informed of the proceedings brought before the court or court-like body and of his right to participate in them. 

All materials provided before the court or court - like  body should be available to the person and his/her representative even if they have been presented by third parties. If they are considered to be detrimental to the person’s health, the court or court-like body should decide whether or how they are presented to the person. The person’s legal representative should always have access to all materials.  

If the relevant body finds that placement or treatment was made in contravention of the legislative provisions in force, the person concerned should have the right to compensation as provided for in Article 5. Paragraph 5 of the European Convention on Human Rights which states: “Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation.”

Furthermore, it was thought that in the case of a person subject to both involuntary placement and treatment, the review of the involuntary placement and treatment should occur at the same time.

Article 14
Article 14

Setting-up and monitoring of quality standards 
for the implementation of mental health legislation

Statistical and other relevant information should be collected and made available for the purpose of monitoring, identifying good practice and for international comparisons . Such information should include the number of people involuntarily placed and treated and the locations where this occurs, as well as the length of time involved.

Non-governmental organisations involved in the field of mental health and human rights should be involved in the system for the setting-up and monitoring of quality standards. Organisations involving users and ex-users of the service and their carers should particularly be invited to participate.