Consultation on the Merits of the Draft Additional Protocol to the Convention on Human Rights and Biomedicine

— EONDFR Statement to the Council of Europe Committee on Bioethics (DH-BIO), by Christine Monty, President of EONDFR — October 2018

In brief: in October 2018, the European Observatory for Non-Discrimination and Fundamental Rights (EONDFR / OENDDF) submitted a statement to the Council of Europe Committee on Bioethics (DH-BIO) proposing four priorities and two amendments to the Draft Additional Protocol to the Oviedo Convention, to better protect persons with mental disorder subject to involuntary placement or treatment.

Context

This statement was submitted by the European Observatory for Non-Discrimination and Fundamental Rights (EONDFR) in October 2018, in its capacity as a member of the Conference of International Non-Governmental Organisations (INGOs) of the Council of Europe. It responds to the consultation launched by the Council of Europe’s Committee on Bioethics (DH-BIO) on the Draft Additional Protocol to the Convention on Human Rights and Biomedicine concerning the protection of the human rights and dignity of persons with mental disorder with regard to involuntary placement and involuntary treatment — at the time set out in document DH-BIO/INF(2018)7, as revised by the 13th meeting of the DH-BIO (Strasbourg, 23–25 May 2018). The text below is reproduced from the Observatory’s archives, following research into the Council of Europe’s own documentation on the draft Protocol, and is republished here in EONDFR’s current editorial format.

I. State of the law

In 2013, the Bioethics Committee of the Council of Europe started to develop a new Additional Protocol to the Convention on Human Rights and Biomedicine (ETS No. 164, adopted in 1997, better known as the “Oviedo Convention”). This Additional Protocol is a legal instrument designed to protect the human rights and fundamental freedoms of persons with a serious mental disorder and who are in a situation of involuntary placement or treatment.

The general observation shows that Article 7 of the Oviedo Convention is not sufficiently clear. It leaves a significant legal vacuum when, for a certain time, a person is not able to give consent. This article provides for only one exception to the consent requirement. This exception is taken into account “only when the absence of such treatment may be seriously detrimental to his health”. In this situation, according to this article, the person must be “subject to the conditions of protection prescribed by law”.

Everyday practice shows that involuntary placement or treatment raises a series of questions for the person concerned, as well as for staff working with them and their family or other caregivers.

As a Member of the Conference of INGOs, the European Observatory for Non-Discrimination and Fundamental Rights was asked to give its statement concerning a Draft Additional Protocol.

In relation with other Associations and NGOs committed in the Protection and Defence of persons with mental disorder, the European Observatory for Non-Discrimination and Fundamental Rights has proposed the following amendments.

II. Amendment proposals

We considered that the proposed protection of persons with mental disorder as stated in the Draft Additional Protocol was not sufficient. We have advocated the following points:

• An independent public authority for places of deprivation of liberty — the creation of an independent Public Authority in charge of places of deprivation and fundamental freedoms seems to us essential in every State. In France, it is the General Controller of places of deprivation and liberty, whose mission is to ensure the fundamental rights and dignity of persons deprived of their liberty (prisons, psychiatric institutions).
• Safeguarding the choice of a “person of trust” — we have underlined that it was necessary that the “person of trust” designated by a person with mental disorder should have no conflict of interests with the concerned person. Nevertheless we advocate that the right to choose a person of trust should be given to any person with mental health disorder.
• Promoting alternatives to involuntary measures — alternative measures to involuntary placement and treatment should be more promoted than they are mentioned in the Draft Additional Protocol. Involuntary placement and treatment should remain an exception as they are always an additional trauma for the person concerned.
• Seclusion and restraint as a medical decision, not a therapeutic tool — seclusion and restraint should never be considered as a therapeutic treatment but as a medical decision. Psychiatric interveners should receive good training concerning the management of violence to avoid the use of seclusion and restraint.

On the basis of our reflection above, we have proposed the two following amendments to the Draft Additional Protocol:

Article 2 — Definitions

“Trusted person” means a person who has been chosen and expressly designated as such by a person with a mental disorder (…) : add “and who does not have a conflict of interest with the patient”.

Article 23

Add a 3rd paragraph as follows: “3. The law designates an independent public control authority, in charge of places of deprivation and freedoms. This public authority is in particular responsible for controlling the care provided to patients and is authorized to provide the necessary recommendations to the appropriate authority, and to the institutions concerned, to guarantee the dignity of patients. A representative of this public authority may speak at any time in private with patients who have undergone an involuntary measure.”

Sources and references

• Council of Europe — Committee on Bioethics (DH-BIO) — Draft Additional Protocol concerning the protection of human rights and dignity of persons with mental disorder with regard to involuntary placement and involuntary treatment, as revised by the 13th DH-BIO (Strasbourg, 23–25 May 2018), DH-BIO/INF(2018)7, Strasbourg, 4 June 2018. Link.
• Council of Europe — Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine (“Convention on Human Rights and Biomedicine” / Oviedo Convention), ETS No. 164, 4 April 1997. Link.
• Council of Europe — Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950 (European Convention on Human Rights, ETS No. 005), Articles 5 and 8. Link.
• European Observatory for Non-Discrimination and Fundamental Rights — Statement on the Draft Additional Protocol to the Convention on Human Rights and Biomedicine, Conference of INGOs of the Council of Europe, October 2018. europeanobsndfr.org.

Methodological note

This statement is reproduced from the Observatory’s October 2018 submission to the Council of Europe. The wording of the analysis and of the two proposed amendments has not been substantively altered; a small number of evident typographical errors in the original text have been corrected.

📄 Download the full statement (PDF)

Statement submitted by Christine Monty, President of the European Observatory for Non-Discrimination and Fundamental Rights (EONDFR / OENDDF), to the Council of Europe Committee on Bioethics (DH-BIO) — October 2018. Republished September 2026.

Read the French version.

Any partial or full reproduction must credit the source: EONDFR / OENDDF.

Frequently Asked Questions