The external compatibility study prepared in anticipation of the final review of the draft Additional Protocol to the Oviedo Convention was organized by the Secretariat of the Committee of Ministers of the Council of Europe. This study didn’t align with what PACE requested, and its objectivity in considering the UN CRPD is questionable, suggesting it serves a different purpose. It has been used by several countries to reshape the potential new protocol to maintain involuntary detention in psychiatry, undermining the UN CRPD’s paradigm shift in disability rights and mental health.
The review of the draft Additional Protocol to the Oviedo Convention, aiming to regulate involuntary admissions and treatments in psychiatry to prevent abuse, is the culmination of a long process. Discussions started in the Committee on Bioethics in the previous century, proposing a legal text on the “protection of persons who are involuntarily committed” in 1994, leading to the inclusion of involuntary detention in psychiatry in the Oviedo Convention as Article 7 in 1995.
Despite this, the issue of abusive commitments in psychiatry wasn’t resolved, prompting further work within the Council of Europe’s committees, resulting in the CM Recommendation (2004)10, which also fell short. The Committee on Bioethics pushed for a separate legal text, leading to the approval of drafting an Additional Protocol to the Oviedo Convention, completed in 2021.
The criticisms of the drafted text stem from its failure to address issues with clear regulations on potentially inhumane interventions, risking consolidation of these measures instead of treating them as a “last resort.” This approach contrasts with the UN CRPD’s model, widely supported and implemented globally, which aims to address underlying discrimination issues.
A confidential study was commissioned by the Secretariat for the final review of the draft Additional Protocol. The Parliamentary Assembly advised maintaining alignment with human rights and the UN CRPD, unanimously rejecting the draft protocol and recommending a study for its compatibility with the CRPD. Despite this, a secretive study, not aligning with the necessary UN documents, was conducted by prof. Andreas Zimmermann, intended for use in Ministerial discussions.
The restricted study, seen as a positioning document rather than a comprehensive assessment, contrasts with the publicly available unified human rights understanding promoted by the UN. The UN CRPD Committee expressed deep concern over the study’s conclusions, stating they contradict the CRPD.
The media was advised against mentioning the confidential study, which didn’t consult the UN CRPD Committee. Despite numerous calls for change, including a statement from the UN CRPD Committee, the draft Additional Protocol was criticized for ignoring the CRPD’s spirit and letter, conflicting with multiple CRPD articles.
The Ministers’ Deputies’ Rapporteur Group could not agree on the draft Additional Protocol, considering three options: abandoning, revising, or initiating a process aligning with international human rights law. Eventually, a revised protocol was prepared, maintaining current Council of Europe conventions, ignoring the UN CRPD’s shift in disability rights and mental health.
As the process continued, new developments indicated possible redefinitions in emergency informed consent, with the Council of Europe declining comments. This ongoing discussion forms part of a broader legal framework intended to promote autonomy in mental healthcare.
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