This article was originally published in Dutch by Jolijn Santegoeds. The text is translated from Dutch into English by the author: Jolijn Santegoeds, board member of the European Disability Forum, founder of Mind Rights (Netherlands), board member of ENUSP and co-chair of WNUSP, on 12 November 2021.
Vote against the “Additional Protocol to the Oviedo Convention”
This article is about European legislation with regards to coercion in mental health care.
The Council of Europe is about to make a big mistake.
It’s now up to the minister of foreign affairs who can turn the tide with his colleagues in the Committee of Ministers in the Council of Europe.
A short explanation of the European developments on coercion legislation follows here.
Coercion in European legislation
Over the course of history, European legislation existed which allowed for the use of coercion in mental health care (ECHR art 5 and Oviedo Convention art 6 and 7). People with psychosocial problems were deprived of their liberty, for example by confinement, forced medication or restraining. This was called care.
Modern human rights
Since 2008 the UN Convention on the Rights of Persons with Disabilities (UN CRPD) applies, in which is emphasized that health status cannot be a reason for deprivation of liberty.
Coercion and deprivation of liberty in health care are in violation of human rights, i.a. the right to equality before the law and legal say (art 12), the right to liberty (art 14), the right to freedom from torture and violence (art 15 and 16), and the right to health and care on the basis of free and informed consent (art 25).
Persons with psychosocial problems are persons with disabilities. The term “disabilities” does not refer to a medical condition, but to a barrier for equal participation in the community (obstacle for inclusion). Equal inclusion is a human right. A disability or support need cannot be a ground for deprivation of liberty.
There is an obvious tension between the old fashioned legislation on ‘necessary coercion’ as is contained in the European and Dutch legislation on the one hand, and on the other hand, the modern human rights view from the UN Convention with the necessity to abolish coercion from health care.
Respect for human rights requires a culture shift in mental health care, and the abolition of coercion.
National politics should have given a lead to this culture shift in the Netherlands, however, they failed when they adopted the Dutch law on Mandatory Mental Health Care (WVGGZ) several years ago, which goes against the UN Convention which was ratified by the Netherlands on 14 July 2016.
The frequently heard call for a tough approach of ‘confused persons’ runs counter to the points of departure of inclusion and human rights, and is based on sensational media reports, stereotyping and discrimination. This is a feature of widespread outdated views on ‘psychiatric disorders’. Under the category of ‘medical model thinking’ people with psychosocial problems are discarded as if they were defect. Under the so called social model the focus is on “normalization” (rehabilitation). But nowadays good care is about empowerment, recovery, inclusion and diversity. The argument of ‘incapacity to consent’ is outdated. Every person has a will. It is about making contact and offering support. Better awareness raising is needed to combat outdated views. The UN Convention should be guiding the development of the health care sector.
The tough approach has been outdated for long. Unfortunately mental health care does not seem to able to mark out the quality of care by themselves, by which the sector became a plaything of politics and economy, and a shear post for law enforcement and budget cuts. This leads to even more human rights violations.
Under the national Dutch legislation (WVGGZ) coercion is permitted as a last resort “when there are no less restrictive alternatives possible”. By that, the availability of good care is directly connected to the degree of coercion. The waiting lists were already distressing in itself, but causing coercion is scandalous. The government fails in her task to offer protection to vulnerable citizens.
The legal position of persons who are exposed to coercion in health care is a wax nose.
Leadership is needed for the required culture shift, to make human rights come true for persons with psychosocial disabilities.
What is the Council of Europe doing?
The Council of Europe is an entity which since 1950 provides the European interpretation of the universal human rights by the European Convention on Human Rights (ECHR) and other conventions. (The Council of Europe is separate from the European Union which was founded in 1993 as a trading union).
The Council of Europe works on further elaboration within their existing frameworks and has a number of committees to that end, as well as the European Court of Human Rights.
The Committee on Bioethics of the Council of Europe has spent recent years on a draft protocol with guidelines which fit within the frameworks of the old European legislation. The draft protocol has a similar character as the Dutch law on Mandatory Mental Health Care (WVGGZ), under which coercion can only be used as a last resort, on people who due to a so called ‘mental disorder’ form a danger to themselves or others, and the whole is dressed with procedures and theoretical ‘rights’.
The full title of the document is: “Draft Additional Protocol concerning the protection of human rights and dignity of persons with mental disorder with regard to involuntary placement and involuntary treatment”.
The short title is: “Draft Additional Protocol to the Oviedo Convention”.
Also see the website of the Bioethics Committee of the Council of Europe
The Draft Additional Protocol to the Oviedo Convention is clashing with the UN Convention on the Rights of Persons with Disabilities (UN CRPD).
Human rights experts of the United Nations (UN) have explicitly called on members states to vote against this draft protocol.
Also the Commissioner for Human Rights of the Council of Europe, Ms. Dunja Mijatovic, has repeatedly spoken out against the draft protocol, for example in 2018.
The text of the draft protocol is only about procedures for deprivation of freedoms, including guidelines for the use of seclusion cells, restraining and even electroconvulsive therapy (ECT). These kind of practices have nothing to do with care, wellbeing or mental health. The approach under the draft protocol is old fashioned and outdated.
Care is attention. It is possible to prevent coercion, by preventing crises and escalations, by providing good support in line with human rights. A culture change is needed in mental health care, not only in the Netherlands, but in Europe as a whole.
The ‘compendium on good practices’ to promote voluntary care and the prevention of coercion, which the Bioethics Committee of the Council of Europe has been composing by now, is misleading. It distracts the attention from the dangerous draft protocol, and it instills the suggestion of improvement of care, while the compendium also contains mediocre initiatives, is not binding at all, and there are no means being made available to actually implement these methods somewhere else or to develop them further into the human rights model. It is in fact just a paper list. In practice, the gaps in the care system are not solved and remain unaddressed. Instead of investing in actual support, they are investing in coercion and in procedures. That does not remedy the deficiency of support.
The draft protocol however will be binding if ratified by the member states of the Oviedo Convention. The deficiencies in support can then continue to exist, after which the law states that coercion remains ‘legitimate’, as long as one checks off enough procedures. These procedures are mandatory, yet good support apparently is not?
The Council of Europe should hold the universal human rights in high esteem. But the regulation of the use of coercion in order to create more ‘unity’ between member states to a ‘average European norm’ is not the same as the actual realization of inclusion and human rights. The implementation of the UN Convention on the Rights of Persons with Disabilities is for now still a challenge for every state, also for the so called ‘developed countries’.
Only good care should be regulated. Bad care should be prohibited.
The immense suffering that is hidden behind the walls of the institutions can not continue any longer. Already from the ‘90s onwards the principle was “the least possible coercion”, but annually the numbers on coercion are on the rise. The current system does not work, and ‘waiting until the problem solves itself’ is not an option. Active policy is needed to abolish coercion from health care imminently. The time of compromising has already passed, and now it is time for a real profound change.
Coercion in health care is not a solution, it is a problem.
What is needed, is more care, and not more coercion.
Committee of Ministers
On 2 November 2021 the Bioethics Committee of the Council of Europe has decided to send the draft protocol to the Committee of Ministers for decision making. It will probably be on the agenda in 2022.
It is very important that the Committee of Ministers of the Council of Europe votes against the Draft Additional Protocol to the Oviedo Convention. The minister who represents the Netherlands is the minister of Foreign Affairs, Ben Knapen.
Universal human rights
46 out of 47 member states of the Council of Europe have ratified the UN Convention on the Rights of Persons with Disabilities. The Additional Protocol to the Oviedo Convention would create conflicting standards in nearly all member states.
When an organization such as the Council of Europe would be able to nullify the effect of the universal human rights by means of a Protocol, then all other human rights are actually also on the line. We cannot let this happen.
It is crucial to vote against the draft protocol.
Only together we can stop the draft protocol of the Council of Europe.
The draft protocol can be thrown out when enough ministers vote against the draft protocol in the Committee of Ministers of the Council of Europe.
It is therefore very important that also the Dutch minister of foreign affairs, Ben Knapen, shall vote against the Draft Additional Protocol to the Oviedo Convention.
The risk of wrong images about psychosocial disabilities is present at the Committee of Ministers, and therefore it is extra important to ensure good awareness raising on psychosocial disabilities, experiences with coercion in health care, alternative, experiences of recovery, failures of care and so on.
Everyone can help to raise awareness on this struggle for human rights in Europe, for example by carrying this message further and/or by making contact with the ministry of foreign affairs addressed to minister Ben Knapen.
It is time to stand up for human rights, in order to prevent the Council of Europe from making a big mistake.
Organize care instead of coercion.
Would you like to know more about the actions and campaigns against the Draft Additional Protocol to the Oviedo Convention? The following websites give more information.
- Call by UN-experts to vote against the protocol.
- Campaign website of various European organisations against this protocol.
- Campaign materials of the European Network of Users, ex-users and Survivors of Psychiatry (ENUSP) active against this protocol.
- Blog by Actiegroep Tekeer tegen de isoleer! / Stichting Mind Rights (Netherlands) with a report of the PACE hearing and a plea against the protocol.
- Article in the European Times about the human rights problem at the Council of Europe.
- Article by Human Rights Watch against this protocol.
- Blog by Actiegroep Tekeer tegen de isoleer! / Stichting Mind Rights (Netherlands) on why forced psychiatric treatment must be prohibited.