10 February 2000
8 -March 2000
10 Legal Questions
10.1 Steering Committee on Bioethics (CDBI)
"White Paper" on the protection of the human rights
and dignity of people suffering from mental disorder, especially those placed as
involuntary patients in a psychiatric establishment
Internet : www.coe.fr/cmline (password access)
Intranet : home.coe.fr/cmline
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 (see Appendix 2 footnote
1 ) .
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 (see Appendix 3 footnote 2 ) .
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
suffering from mental disorder, especially those placed as involuntary patients, including
their right to appropriate treatment.".
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.".
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 suffering from mental disorder of the ethical and legal considerations which must
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.
The present "White Paper" is published for public consultation purposes, with
a view to drawing up guidelines to be included in a new legal instrument of the Council of
The CDBI authorised the publication of the present document, the contents of which only
constitute at this stage the result of the work of a group of experts. Consequently, the
views contained in it do not necessarily reflect the final position of the CDBI, of the
Committee of Ministers of the Council of Europe or of its member States.
The Council of Europe will directly consult organisations representative at European
level on the present document. The national authorities, for their part, will organise
consultations at national level.
In both cases, comments arising from these consultations must reach the Secretariat of
the Council of Europe, in English or French, by the end of October 2000 at the latest.
Consideration of the problem could be structured round the following points:
1. The scope of application of the new legal instrument
2. The categories included in the concept of mental disorder
3. The criteria for the involuntary placement in a psychiatric establishment and for
the involuntary treatment
4. The procedures for taking a decision of involuntary placement and of involuntary
5. The procedures for involuntary placement and treatment in cases of emergency
6. Involuntary treatment specific considerations
7. Special treatments
8. The involuntary placement and treatment of minors
9. The involvement of the police, courts and the prison system in the involuntary
placement and treatment
10. Research on people suffering from mental disorder placed as involuntary patients in
a psychiatric establishment
11. The human rights of people suffering from mental disorder, especially those placed
as involuntary patients
12. The discrimination of people suffering from mental disorder
13. The termination of involuntary placement and treatment
14. The review of the lawfulness of the involuntary placement and treatment
15. The setting-up and monitoring of quality standards for the implementation of mental
1. The scope of application of the new legal instrument
It is proposed that:
1. it should deal with both involuntary placement and involuntary treatment, whether or
not the latter takes place in the context of the involuntary placement
2. involuntary placement should only take place for therapeutic reasons
3. unless otherwise stated, the new legal instrument should apply to involuntary
placement and treatment decided upon in both civil and criminal matters.
Are these proposals acceptable and appropriate?
2. The categories included in the concept of mental disorder
1. In the course of its work, the Working Party noted that the definitions of
mental disorder proposed by the World Health Organisation and the American Psychiatric
Association specified no precise boundaries. It hence was of the opinion that mental
disorders could not be classified with absolute precision and that the term "mental
disorder" could cover mental illness, mental handicap and personality disorders (as
regards mental handicap, it was noted that some countries used the concept of
2. In respect of personality disorders, account was taken of the judgement of the
European Court of Human Rights in the Winterwerp case, which reads as follows "
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
3. However, it was suggested that involuntary placement or treatment should only
be appropriate with regard to certain types of mental disorder, eg. some people suffering
from psychoses or severe neuroses , certain types of personality disorder and in
significant mental handicap. 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. In a situation where mental handicap is associated with
mental illness, management of the situation occasionally requires the use of the
legislation on involuntary placement and treatment. The term "significant mental
handicap" has been used as a description of this disorder.
4. Involuntary placement should under no circumstances be used for political ends. (In
this respect, reference could in particular be made to Recommendation No R (83)2 of the
Committee of Ministers to member States on 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.").
Are there categories which should be included in or excluded from the concept of
"mental disorder" for the purposes of mental health legislation?
5. An alternative proposal to the use of mental disorder is to use the concept of
mental incapacity whereby decisions are based on the ability of the individual, as
determined by medical and other professional staff, to understand the nature of treatment
or admission, weigh up the benefits of such, make a choice and communicate that choice.
Should the concept of mental incapacity be further developed for the purposes of
mental health legislation?
3. The criteria for the involuntary placement in a psychiatric establishment
and for involuntary treatment
The Working Party considered that deprival of liberty occurring as a result of
involuntary placement or administration of an involuntary treatment should always be
accompanied by procedures to protect the rights of the person concerned.
It added that a distinction had to be made between the legal ground for involuntary
placement and the legal ground for involuntary treatment. In other words, this means that
the involuntary placement as such does not mean that the patient can in any event be
treated against his/her will, nor that involuntary treatment should inevitably require
Is a distinction between involuntary placement and treatment valid and meaningful?
It appeared appropriate to retain the view that even if the patient was admitted
involuntarily, the presumption of competence to decide about his/her own treatment
prevails, unless inability to decide on his/her own treatment was one of the legal
criteria behind placement.
A number of criteria should be met before involuntary placement or treatment occurs:
a. The existence of a mental disorder must be recognised or assessment required to
determine whether a mental disorder is present
Should the grounds for detention for assessment in the absence of definite
signs of a mental disorder be defined? If so, how?
b. This mental disorder must represent
i. a serious danger to the person concerned (including to his/her health) and/or
ii. a serious danger to other persons (provided that the placement or the treatment or
both are likely to be beneficial to the person concerned in all cases).
Should proposals for determination and definition of the required level of
dangerousness be included in legislation? Is the concept of 'risk' preferable to that of
Should the concept of benefit for the person concerned be further defined?
c. The person in question is capable of consent and does not consent to the
placement or treatment (the person is capable of consent but explicitly refuses or does
not react) or the person is incapable of consent and refuses placement or treatment (it
was underlined that involuntary placement or treatment could in particular be used in
certain cases where, for instance, the person concerned does not persistently agree to the
measure and may therefore change his/her mind frequently as to his/her agreement to
placement or treatment).
d. Means of giving the patient the appropriate care which is less restrictive than
involuntary placement are not available. In this context, mention has been made of the
alternatives to placement, which might 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). Member States must ensure that
measures are taken to make alternatives to placement as widely available as possible.
Given the serious nature of this legislation, should legislation specify certain
alternatives which should always be available? If so, which?
Should deprivation of liberty in the criminal field be based on different/more criteria
as the criteria described under a. to d. above?
4. The procedures for taking a decision of involuntary placement and of
1. The procedures described below concern circumstances other than emergencies. The
procedures in case of emergency are dealt with under the next heading.
2. In the course of its work, the Working Party expressed the opinion that it was
- the patient 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 involuntary placement or extension of involuntary placement or for a decision
on involuntary treatment or its extension to be taken.
- the decision confirming 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.
3. The Working Party had considered at length the notion of "relevant independent
authority". In particular, it took into consideration Recommendation 1235 (1994) of
the Parliamentary Assembly on psychiatry and human rights, which advocates that the
decision of placement be taken by a judge. It was also informed that in several member
States this decision could be taken by bodies other than courts. It noted that case-law of
the European Court of Human Rights had never required the initial placement decision to be
taken by a court or court-like body. In the opinion of the Working Party, the relevant
question was the independence of the body or authority which takes the decision of
placement, 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. It was thus
noted that, in some countries, the relevant authority may be a doctor authorised to take
such a decision within a psychiatric establishment, for example, who should be independent
in relation to the doctor who proposed the placement measure, in others, it may be a
social worker or hospital manager, who may work alongside the doctor examining the patient
for the purposes of involuntary placement. Furthermore, such an authority should ensure
that social care aspects are duly taken into consideration.
What should be the characteristics of the 'relevant independent body'? Who might
reasonably fulfil this role and who not?
4. Basing themselves in particular on Article 5, paragraph 2, of the European
Convention on Human Rights and the case-law relating to it, the experts considered that
the decision of involuntary placement should be taken promptly, be duly documented and
state the duration of the said placement. They further considered that the patient should
be informed promptly, regularly and appropriately of the reasons for the placement.
Lastly, under this procedure, the patient should be able to state their views and opinions
on the placement and this should be taken into consideration by the relevant independent
5. When examining this question, the Working Party considered the view that the family
and other people close to the patient should be consulted on involuntary placement or
treatment and agreed that they should be consulted only if the patient consents, or if
there are wider issues of public safety which mean that family members and other people
close to the patient can be consulted without the patient's consent. Furthermore,
information for the family and other people close to the patient about the reasons on
which the involuntary placement or treatment are based should be given promptly and in an
appropriate manner which, inter alia, enables the family and other close people to
understand it. The Working Group are however aware that, in certain cases, the interests
of the members of the family may not be those of the patient.
Should family members always be consulted about an individual patient's detention or
about the patient's involuntary treatment ? Should others 'close to the patient' take
precedence over family members on any occasion?
6. Lastly, it considered that in the case of the involuntary placement or treatment
of a person suffering from mental disorder having a legal representative nominated by the
patient, the said representative should be informed and consulted, it being understood
that it was up to the patient or his/her close family or friends to indicate the existence
of such a representative to the relevant authority. 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.
5. The procedures for involuntary placement and treatment in cases of emergency
1. It would seem neither reasonable nor advisable, inter alia because of the
immediate danger to the person concerned and/or others in an emergency situation
i.e. a situation 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- to always
await the placement or treatment decision of the relevant independent authority. The
Working Party has thus considered that, 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. The Working
Party nevertheless underlined that the emergency procedures should not be used with the
aim to avoid applying normal procedures.
2. In these circumstances, 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, after seeking the opinion of the person
concerned. It also seemed advisable to consider that, when taking its decision, the
relevant authority should again 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
3. When adopting this position, the experts based themselves in particular on the
case-law of the European Convention on Human Rights, which requires no prior decision by
the relevant authority in an emergency situation. Indeed, the judgement of the European
Court of Human Rights of 5 November 1981 in the X. v. United Kingdom case states in
particular the following: "
the Winterwerp judgement expressly identified
'emergency cases' as constituting an exception to the principle that the individual
concerned should not be deprived of his liberty unless he has been reliably shown to be of
Are there any other necessary safeguards relating to emergency situations?
6. Involuntary treatment - specific considerations
1. The Working Party approved as a fundamental principle that treatment must in
all cases be administered for the benefit of the patient. Treatment should always be
applied in response to a recognised clinical symptom, have a therapeutic aim and be likely
to entail a real clinical benefit and not only an effect on the administrative, criminal,
family or other situation of the patient (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 symptom. It must correspond to a medical need rather
than to a social, family or economic need. It was also underlined that emphasis should be
put on therapeutic intent rather than on prior evidence of efficacy of the treatment.)
2. Furthermore, when a person is placed involuntarily, his/her ability to consent
should be verified for every form and course of treatment envisaged.
3. The representative of a person should be consulted but where he/she refuses consent
to treatment for the person concerned, it should be possible to approach a court or
court-like body with the power to respect or overturn the decision of the representative.
4. The Working Party was also of the opinion that a written scheme of
involuntary treatment must 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 scheme 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. Should the patient not consent to the said scheme, he or she
should be able to appeal to a court or court-like body.
5. Lastly, written report should be drawn up for each involuntary course of treatment,
without the implementation of this procedure however generating too much bureaucracy, and
the treatment should always be adapted to the patient. In particular, the involuntary
treatment 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
also 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.
6. When because of an emergency situation the appropriate consent cannot be obtained,
the Working Party, on the basis of the relevant provisions of the Convention on Human
Rights and Biomedicine, considered that any medically necessary intervention may be
carried out immediately.
7. It would be useful that the addressees of the present document indicate the
measures which, from their point of view, should not be included in the concept of
7. Special treatments
1. These treatments remain controversial. Although it already reached a number
of provisional conclusions on this matter, the Working Party would wish to know the views
of the addressees of the present document on the subject.
2. Research into electroconvulsive therapy has shown it to be effective in cases of
depressive illness, for example. Electroconvulsive therapy is now administered in
conjunction with an anaesthetic and muscle relaxants; the use of non modified
electroconvulsive therapy should be strictly prohibited. In severe depressive illness,
emergency administration in the absence or, rarely, against a patient's consent may be
warranted because of the severity of the illness and lack of effective alternatives. Electroconvulsive
therapy should be administered in circumstances in which the dignity of the patient is
always fully respected.
3. However, the effectiveness of psychosurgery has not been established by appropriate
controlled research. Thus, where States continue to sanction the use of it, the consent of
the patient should be an absolute prerequisite for its use. Furthermore, the decision to
use psychosurgery should in every case be confirmed by a committee which is not
exclusively composed of psychiatric experts. The Working Party considered that in each
member State the legislators should establish special protocols for the administration of
psychosurgery. In so far as there is no clear proof of the effectiveness of psychosurgery,
countries which still permit its use should introduce a system for recording full
information about any operations carried out . It was also thought that there should be
vigilance in regard to the use of hormone implants to alter sexual drive.
What further safeguards are necessary for the administration of:
c. Hormone implants?
4. Lastly, no circumstances could be envisaged in which psychosurgery for mental
disorder could have any beneficial effects for minors. The addressees of the present
document might also wish to express their views on this last point.
8. The involuntary placement and treatment of minors
1. During its discussions, the Working Party considered that protection measures
for minors should be more stringent than those for adults. The conditions and safeguards
relating to involuntary placement and treatment of adults should also apply to minors to
the same extent at the very least.
2. Minors may not be able to defend their own interests, and so in all cases, the
assistance of a representative from the beginning of the procedure should be available.
Such 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
3. On the basis of the relevant provisions of the Convention on Human Rights and
Biomedicine, the Working Party furthermore felt, as regards the consent of minors to a
treatment, that the opinion of the minor shall be taken into consideration as an
increasingly determining factor in proportion to his or her age and degree of maturity.
4. As regards more particularly the living conditions of minors subject to involuntary
placement, it has been considered that they should be treated and reside in separate
premises from those in which adults reside, unless this is against the interest of the
minor concerned. This concerns, for example, some exceptional cases in which it might be
in the 'older' minor's best interest to reside in an adult unit close to home - thus
promoting contact with the family - rather than in a paediatric unit a long way from home.
Furthermore, the Working Party felt that the new legal instrument being prepared should
specify that any minor suffering from mental disorder and placed as an involuntary patient
in a psychiatric establishment shall have the right to a public education. In particular,
every minor shall be individually evaluated and receive, if possible, an individualised
educational or training programme, it being understood that teaching shall be organised by
the relevant education departments in consultation with the management of the psychiatric
establishment. Reintegration of minors into the general school system should be fully
taken into account as soon as it seems appropriate.
Are there other questions and comments as regards involuntary placement and
treatment of minors?
9. The involuntary placement and treatment involving the police, courts and
the prison system
1. During its work, the Working Party found it necessary to include in the legal
instrument being prepared a number of provisions more specifically devoted to the question
of the involuntary placement and treatment involving the police, courts and the prison
system. During its discussion on this item, it gave particular importance to the views
expressed by the European Committee for the Prevention of Torture and Inhuman or Degrading
Treatment or Punishment (CPT) which, as authorised by the European Convention for the
Prevention of Torture and Inhuman or Degrading Treatment or Punishment of 1987, makes
numerous visits to places where people are deprived of their liberty, in particular
prisons and psychiatric establishments, in States Parties to the Convention.
2. The Working Party was of the opinion that the police are the guarantor for
the respect of the security of persons and for public order. They 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 serious danger for himself/herself or
others according to national law. The intervention may include arrest or entry into
premises according to national law.
3. It further considered that the police must co-ordinate 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. Where arrest is necessary, it must 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 suffering from mental disorder during
police investigation and detention in police stations. Where such arrest has occurred, a
medical examination must 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. If an offence is suspected, this
should be dealt with promptly, in accordance with Article 5, paragraph 3, of the European
Convention on Human Rights. 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.
4. Furthermore, the CDBI-PH was of the opinion that the police, within the framework of
its general mission, i.e. to be the guarantor for the respect of the security of persons
and for public order, may be required to assist in conveying or returning patients subject
to involuntary detention to hospital or other care facilities.
5. Lastly, it considered that appropriate training should be given to members of the
police as regards assessing and managing situations involving people suffering from mental
disorder. Such training should be provided in consultation with local health services and
include basic guidance on recognition and management of people suspected of having a
mental disorder with regard to relevant legislation.
Courts and prisons
6. The CDBI-PH was of the opinion that criteria under criminal law should
follow the same as those applied in civil law with the following exceptions:
- Consent may be given by the person concerned to placement or treatment but
court may nevertheless impose placement or treatment;
- 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, it
being understood that, as with civil proceedings, termination of placement or treatment
should occur when criteria are no longer met. Furthermore, the individual may request
review of the legality of his placement or treatment and ex officio review should occur
where they do not .
7. The Working Party also felt that 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 on the basis of expert opinion.
8. The CDBI-PH considered that, in sentencing, the courts should take into
consideration the fact that people with mental disorders should be treated in a medically
appropriate place. Furthermore, transfers between prison and hospital should occur where
necessary for assessment and/or treatment to occur.
9 It was also noted that 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 request an expert opinion on his condition. If his/her
transfer is denied, an effective appeal system should be made available.
10. As regards prison care facilities, the Working Party considered that medical
confidentiality should be guaranteed and respected with the same rigour as in the
population as a whole. It also felt that 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. 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.
11. Lastly, the CDBI-PH was of the opinion that 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. In this respect, it
was underlined that 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.
The Working Party therefore felt that Member States should put into place mechanisms to
overcome these infringements of individuals' human rights.
Are there particular considerations that the Working Party should make with regard
to the way in which the police, courts and prisons deal with people with mental disorders?
10. Research on people suffering from mental disorder placed as involuntary
patients in a psychiatric establishment
The Working Party on biomedical research of the Steering Committee on Bioethics
is currently preparing a draft Protocol to the Convention on Human Rights and Biomedicine,
on the subject of biomedical research, and considers,amongst others, the issue of research
on persons deprived of their liberty. The Working Party on Psychiatry and Human Rights
shall follow the work of this Working Party and examine the text to be drafted on the
topic of research on persons deprived of their liberty.
11. The human rights of people suffering from mental disorder, in particular
those placed as involuntary patients
1. The Working Party felt that every person suffering from mental disorder should
retain those civil and political rights for which he/she has capacity to make decisions ;
in addition, the experts 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. Furthermore, every person suffering from mental disorder should have the right,
to the extent possible, to live and work in the community (in particular, the person
concerned should not automatically be deprived of the right to vote or to make a will, and
he or she, whenever possible, should be enabled to enter into legally effective
transactions of an everyday nature).
Are there other considerations that should be made as regards the civil and
political rights of people suffering from mental disorder?
2. The environment and living conditions of a person suffering from 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 should include vocational
rehabilitation measures to promote reintegration in the community. A number of factors
which can create a positive therapeutic environment for persons placed as involuntary
patients in a psychiatric establishment have been stressed, such as, for example,
sufficient living space per patient as well as adequate lighting, heating and ventilation,
the provision of bedside tables and wardrobes, individualisation of clothing, to avoid the
use of large-capacity dormitories depriving patients of all privacy.
3. The Working Party also considered that as soon as the patient's health permits, he
or she should be transferred to a less restrictive care facility.
4. Furthermore, the treatment and care of the patient should be based on an
individually prescribed scheme, discussed with the patient, reviewed regularly, revised as
necessary, and provided by adequately qualified staff ( in this respect, it was thought
that staff qualifications should be registered with professional bodies and staff,
themselves, should participate in programmes providing continuing professional
development). Except under exceptional circumstances, i.e. in the interests of public
safety or as agreed for the purposes of medical research (see section 10 above),
information on the patient's health, including medical data, should remain confidential
(in this respect, reference was made to Article 8 of the European Convention on Human
Rights which enshrines the respect for people's private lives, 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
to 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
also considered that, with due respect to the above-mentioned instruments, relevant
medical information on the patient's health, including medical data, could be transmitted
to the medical doctor or appropriate health and social care workers who may request it.
5. The Working Party also examined the issue of the means of physical restraint and of
seclusion. It considered that the use of short periods of physical restraint and 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. In this context,
it was underlined 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 must 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.
6. It was furthermore felt that seclusion 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; furthermore, 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 mentioned in a proper register and in the patient's personal
What safeguards should be provided to govern restraint or seclusion of patients?
7. The Working Party also examined the question of the temporary and permanent
infringement of individual's capacities to procreate and considered that, should this
issue be mentioned in the new legal instrument being prepared, it would be appropriate
that the Recommendation provide that except in the most exceptional cases, there must be
no permanent infringement of an individual's capacities to procreate without the
individual's consent. Furthermore, the permanent infringement of an individual's
capacities to procreate should always take place in the best interest of the person
concerned; in other words, the clinical aim of such an infringement should always be the
protection of the person concerned. It should then certainly be appropriate to specify
that the mere fact that a person suffers from a mental disorder does not constitute a
sufficient reason for causing permanent infringement to that person's capacities to
procreate.Where permanent infringement of individual's capacities to procreate is
envisaged, the matter should be examined by a court or court-like body.
Are there exceptional circumstances permitting permanent infringement of procreation
capacities of people suffering from mental disorder? If so, what are these circumstances?
Should the exceptional circumstances where permanent infringement of procreation is
deemed permissible be specified?
What safeguards should exist to ensure that permanent infringement of procreation
capacities only occurs in exceptional circumstances?
8. The Working Party expressed the opinion that the right of the person suffering
from 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. In this respect, it was specified that no restrictions on
correspondence with the lawyer or the appropriate authority, including the European Court
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.
9. As regards the right of the patient to communicate with persons other than those
referred to above, it has been considered that it should not be unreasonably affected. 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 future prospects or to the rights and freedoms of other people
(for example, repeated unpleasant telephone calls or letters, suspicion of
drug-trafficking; another example might be where someone affected by manic
depression writes and intends to send a letter of resignation to their employer). It was
also underlined that measures such as 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.
What circumstances would justify restriction of the right to communicate? What
safeguards should exist to protect this right?
10. The Working Party furthermore felt that in this field 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 which deals with the issue of the respect for private and family life.
11. With regard to communication from outside, it was stressed that nothing should
hamper communication between the outside and the psychiatric establishment on the one hand
or the patient's right to receive information from outside on the other hand.
12. Lastly, the Working Party was of the opinion that the freedom of the persons
suffering from 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 who might be exploited during visits and of the
existence of limited visiting rights for certain patients and in certain care facilities.
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
13. The Working Party was also of the opinion that the protection of patients'
situation should be ensured pursuant to the national legislations of member States. In
this framework, it was underlined that when a person suffered from 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 suffering from 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 suffering from mental disorder as regards
their future situation in the field of employment and family life.
12. Discrimination against people suffering from mental disorder
When considering this problem, the experts felt that member States should take
measures to eliminate discrimination against people suffering from mental disorder,
including within health services. Member States should also encourage the holding of
campaigns aiming at increasing the awareness of the public about discrimination against
people suffering from mental disorder. Here the importance of Article 14 of the European
Convention on Human Rights (prohibition of discrimination) and of the case-law of the
European Court of Human Rights were stressed. Certain examples have been highlighted by
the experts, in particular the incorrect and stigmatising use of terms such as
schizophrenia in the media, discriminatory practices concerning employment of patients or
former patients, discriminatory practices concerning assurance, less financial and
technical means in favour of psychiatric establishments or services of general hospitals
where people suffering from 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 suffering from mental disorder.
What concrete measures should member States be expected to take to reduce
13. The termination of involuntary placement and treatment
1. The Working Party felt that involuntary placement or treatment should be
terminated when criteria for involuntary placement or treatment are no longer met; the
medical doctor, the establishment and the independent authority should have the competence
to put an end to the involuntary placement in view of the criteria mentioned under point
3. above. It was underlined that 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.
2. As regards after-care of those who have been subject to involuntary placement, the
experts considered that appropriate after-care provision 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. But they felt that the lack of such services outside the establishment should not
in itself be sufficient reason to prolong detention.
14. The review of the lawfulness of the involuntary placement and treatment
1. The Working Party considered that patients should be able to request at
reasonable intervals the review of the lawfulness of involuntary placement or treatment by
a court or court-like body; 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, should decide as soon as possible and use adversarial procedure; 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;
furthermore, in the proceedings following the request to a court or court-like body the
person placed or treated as an involuntary patient should have the right to be heard
either in person or, where necessary, through a representative.
2. The experts felt that where appropriate, the person placed or treated as an
involuntary patient should have the right to have legal counsel if he/she is not fully
capable of acting for himself/herself, without the need himself/herself to take the
initiative in obtaining legal counsel. Free legal aid should be available for the
providing of legal counsel, according to national law.
3. 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
4. It would be appropriate that the person placed or treated as an involuntary
patient or his representative have access to all the materials before the court or
court-like body, and have the right to challenge the evidences before the court or
court-like body. Furthermore, 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.
5. 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.
Are these review arrangements appropriate? Should lay persons be entitled to
participate in the proceedings before the court or court-like body?
6. Furthermore, 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,
should identify any violations of national legislation in force in the field of
involuntary placement and treatment and send these to the relevant body ; it was
underlined, in particular, that 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.".
7. It was also 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.
8. Lastly, the Working Party considered whether a right of appeal against the court
or court-like body should be considered.
Should an appeals process be established and, if so, what form should it take?
15. The setting-up and monitoring of quality standards for the implementation of
mental health legislation
1. In the framework of the consideration of this question, the Working Party
considered that the systems for the setting-up and monitoring of quality standards for the
implementation of mental health legislation should:
a. be provided with sufficient financial and human resources to perform their tasks;
b. be organisationally independent from the management of the Mental Health Services or
premises which are being monitored;
c. be co-ordinated between themselves and with other audits and quality assurance
In addition, 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.
2. Furthermore, the experts were of the opinion that arrangements for the
setting-up and monitoring of quality standards should include:
a. ensuring that persons with mental disorders are not detained in premises which are
not registered by the appropriate authority;
b. 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;
c. 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
d. 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;
e. 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;
f. meeting privately with patients subject to provisions of Mental Health legislation
and accessing their medical and clinical file at any time;
g. receiving complaints confidentially from any such patients and ensuring that local
complaints procedures are in place and that complaints are appropriately replied to;
h. reviewing situations in which restrictions to communication have been applied;
i. 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);
j. ensuring that statistical information on the use of Mental Health legislation and
complaints is collected reliably and systematically;
k. 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 on such
matters as the mental health of the society, activities for improving the life quality of
people suffering from mental disorder and the conditions of their treatment.
l. 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;
m. 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.
What monitoring arrangements would be appropriate? Are the arrangements proposed
likely to be effective and sufficient for this task?
Are there other fields of interest to you and on which you would like to make comments?
The CDBI-PH will continue its work on the subject, in the light in particular of
the views expressed by the addressees of the present document. It is foreseen that it will
submit a preliminary draft Recommendation to the CDBI in 2001. The text thus approved by
the CDBI will be presented by the CDBI in the form of a draft Recommendation to the
Committee of Ministers of the Council of Europe, with a view to its adoption.
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 must be a "tribunal" established by law and meeting the requirements of
independence and impartiality; it must have sufficiently broad jurisdiction to determine
all aspects of the dispute or charge to which Article 6 applies; the individual concerned
must 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 must have power to give a
binding decision on the matter before it.
DANGER: Danger can be interpreted as the chance that damage will occur
INVOLUNTARY PLACEMENT: Involuntary placement means the admission and detention
for treatment of a person suffering from 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 suffering
from 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 covers mental illness, mental handicap (or learning
disability) and personality disorders.
MENTAL INCAPACITY: Concept whereby decisions are based on the ability of the
individuals, as determined by medical and other professional staff, to understand the
nature of treatment or admission, weigh up the benefits of such, make a choice and
communicate that choice
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 must 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
TREATMENT: This term covers the management of a person suffering from mental
disorder and any intervention- whether of a physical, psychological or social nature-
having a therapeutic aim.
Recommendation No. R (83) 2
of the Committee of Ministers to the member states
concerning the legal protection of persons suffering from mental disorder
placed as involuntary patients footnote 3
(adopted by the Committee of Ministers on 22 February 1983
at the 356th 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 to the Convention for the Protection of Human Rights and Fundamental
Freedoms and to its application by the organs established under that convention;
Having regard to Recommendation 818 (1977) of the Consultative Assembly of the Council
of Europe on the situation of the mentally ill;
Considering that common action at European level will promote the desired better
protection of persons suffering from mental disorder,
Recommends that the governments of the member states should adapt their laws to the
rules annexed to this recommendation or adopt provisions in accordance with those rules
when introducing new legislation.
1. These rules concern the involuntary placement of persons suffering from mental
disorder. Placement decided pursuant to criminal proceedings is not covered by these
rules; however, Rules 5,9,10 and 11 apply to such a placement.
2. Involuntary placement (hereinafter referred to as "placement") means the
admission and detention for treatment of a person suffering from mental disorder
(hereinafter referred to as "patient") in a hospital, other medical
establishment or appropriate place (hereinafter referred to as "establishment"),
the placement not being at his own request.
3. The admission of a patient to an establishment for treatment at his own request does
not fall within the field of application of these rules. However, these rules apply to
cases where a patient who has originally been admitted at his own request is to be
detained in an establishment in spite of his wish to be discharged.
Psychiatrists and other doctors, in determining whether a person is suffering from
a mental disorder and requires placement, should do so in accordance with medical science.
Difficulty in adapting to moral, social, political or other values, in itself, should not
be considered a mental disorder.
In the absence of any other means of giving the appropriate treatment:
a. a patient may be placed in an establishment only when, by reason of his mental
disorder, he represents a serious danger to himself or to other persons;
b. states may, however, provide that a patient may also be placed when, because of the
serious nature of his mental disorder, the absence of placement would lead to a
deterioration of his disorder or prevent the appropriate treatment being given to him.
1. A decision for placement should be taken by a judicial or any other appropriate
authority prescribed by law. In an emergency, a patient may be admitted and retained at
once in an establishment on the decision of a doctor who should thereupon immediately
inform the competent judicial or other authority which should make its decision. Any
decision of the competent judicial or other authority mentioned in this paragraph should
be taken on medical advice and under a simple and speedy procedure.
2. Where a decision for placement is taken by a non-judicial body or person, that body
or person should be different from that which originally requested or recommended
placement. The patient should immediately be informed of his rights and should have the
right of appeal to a court which should decide under a simple and speedy procedure.
Moreover, a person whose duty it is to assist the patient to decide whether to appeal
should be designated by an appropriate authority, without prejudice to the right of appeal
of any other interested person.
3. When the decision is taken by a judicial authority or when an appeal is made before
a judicial authority against the decision of placement by an administrative body, the
patient should be informed of his rights and should have the effective opportunity to be
heard personally by a judge except where the judge, having regard to the patient's state
of health, decides to hear him through sole form of representation. He should be informed
of his right to appeal against the decision ordering or confirming the placement and, if
he requests it or the judge considers that it would be appropriate, have the benefit of
the assistance of a counsel or of another person.
4. The judicial decisions referred to in paragraph 3 should be open to appeal.
1. A patient put under placement has a right to be treated under the same ethical
and scientific conditions as any other sick person and under comparable environmental
conditions. In particular, he has the right to receive appropriate treatment and care.
2. A treatment which is not yet generally recognised by medical science or presents a
serious risk of causing permanent brain damage or adversely altering the personality of
the patient may be given only if the doctor considers it indispensable and if the patient,
after being informed, has given his express consent. If the patient is not capable of
understanding the nature of the treatment, the doctor should submit the matter for
decision to an appropriate independent authority prescribed by law which should consult
the patient's legal representative, if any.
3. Clinical trials of products and therapies not having a psychiatric therapeutic
purpose on persons suffering from mental disorder, subject to placement, should be
forbidden. Clinical trials having a psychiatric therapeutic purpose are a matter for
national legal provisions.
The restrictions on the 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.
A patient should not be transferred from one establishment to another unless his
therapeutical interest and, as far as possible, his wishes are taken into account.
1. A placement should be for a limited period or, at least, the necessity for
placement should be examined at regular intervals. The patient can request that the
necessity for placement should be considered by a judicial authority at reasonable
intervals. The rules in Article 4, paragraph 3, apply.
2. The placement may be terminated at any moment on the decision:
a. of a doctor, or
b. of a competent authority,
acting on his own initiative or at the request of the patient or any other interested
3. The termination of the placement does not necessarily imply the end of treatment
which may continue on a voluntary basis.
1 . The placement, by itself, cannot constitute, by operation of law, a reason for
the restriction of the legal capacity of the patient.
2. However, the authority deciding a placement should see, if necessary, that adequate
measures are taken in order to protect the material interests of the patient.
In all circumstances, the patient's dignity should be respected and adequate
measures to protect his health taken.
These rules do not limit the possibility for a member state to adopt provisions
granting a wider measure of legal protection to persons suffering from mental disorder
subject to placement.
I. General considerations
1. In 1977, the Parliamentary Assembly of the Council of Europe adopted its
Recommendation 818 (1977) on the situation of the mentally ill. This Recommendation, inter
alia, underlined the need for better legal protection of the mentally ill, especially
those who are subject to measures relating to involuntary placement.
2. On the proposal of the European Committee on Legal Co-operation (CDCJ), the
Committee of Ministers asked a committee of experts responsible to the CDCJ to study a
number of problems in the field of medical law with a view to identifying specific issues
lending themselves to legislative harmonisation at European level. The committee met in
the spring of 1979 and proposed, among other subjects, the question of the legal
protection of the mentally ill. The CDCJ, aware of the fact that the Winterwerp case had
entered its final phase before the European Court of Human Rights, recommended to the
Committee of Ministers that, among other legal matters in the medical field, priority
should be given to the legal protection of the mentally ill and a committee of experts
should be entrusted with the task of preparing an international legal instrument.
3. The Committee of Experts on Legal Problems in the Medical Field held four meetings
at which it proposed a draft recommendation. The opinion of the European Public Health
Committee (CDSP) was sought on the text, which was then revised by the CDCJ and adopted by
the Committee of Ministers on 22 February 1983 as Recommendation No. R (83) 2.
II. Comments on the Recommendation
4. The problem of the legal protection of the mentally ill raises a series of human
rights issues relevant to several articles of the European Convention for the Protection
of Human Rights and Fundamental Freedoms (particularly Articles 3, 5, 6 and 8). The
case-law of the organs established under the convention is developing Among the relevant
decisions in this field two in particular should be mentioned.
5. The European Court of Human Rights delivered judgement in the Winterwerp case
on 24 October 1979. The Court, interpreting paragraph 4 of Article 5 footnote
4 of the convention in the case before it, inter alia, stated:
it is essential that the person concerned (mentally ill patient who
undergoes involuntary placement) should have access to a court and the opportunity to be
heard either in person or, where necessary, through some form of representation..." (
see paragraph 60 of the Winterwerp judgement of the European Court of Human
In its judgement, the Court made it clear that it was a requirement of the European
Convention on Human Rights that the mentally ill person concerned had a right of access to
a court. A careful study of the Winterwerp judgement was made and special attention
was given to this conclusion when the recommendation was prepared.
6. On 5 November 1981 the Court, in the case X against the United Kingdom,
decided, inter alia, that there was a breach of Article 5, paragraph 4, of the
convention. The Court found that, although X had access to a court which ruled that
his detention was "lawful" in terms of English law, a judicial review as limited
as that available in the habeas corpus procedure, while adequate for emergency
measures for the detention of persons on the grounds of unsoundness of mind, was not
sufficient for a continuing confinement such as the one undergone by X until 1976.
7. These judgements were taken into consideration and it was also noted with particular
interest that in all member states there was a wish to improve the treatment and legal
protection of persons suffering from mental disorder who are subject to involuntary
placement. It was considered that this wish, apparent in all member states, would best be
implemented by harmonisation of laws at European level. It was thought, furthermore, that
states might also re-examine the facilities available to doctors for treatments as well as
hospital conditions in order to introduce further improvements in the interest of persons
suffering from mental disorder.
8. Therefore, taking into account, on the one hand, recent judgements of the European
Court of Human Rights and, in the other hand, the legislative trends in member states,
giving better legal protection to persons suffering from mental disorder who require
placement, a series of rules appended to this Recommendation were drawn up.
III. Comments on the rules
9. This article defines the scope of application of the rules and excludes
placement measures decided pursuant to criminal proceedings. This means that the
Recommendation shall not apply to measures decided by a court in the course or at the end
of criminal proceedings. However, it was considered that questions relating to treatment,
legal capacity and dignity of patients (Rules 5, 9 and 10) did not fall within the field
of criminal law and, therefore, the rules of the Recommendation should apply even to
placement decided pursuant to criminal proceedings. In the countries where criminal
proceedings can, by reason of the mental disorder of the accused person, lead to the
application of placement provided for by the ordinary law, the rules appended to this
Recommendation shall apply.
10. The term "persons suffering from mental disorder" was preferred to that
of "mentally ill persons" since certain persons, although they are not
considered as "mentally ill", suffer from such mental disorders that they might
require placement. It was therefore thought that these persons, when subjected to
involuntary placement, also need the legal guarantees and protection offered by the rules.
11. Paragraph 2 of this article defines "involuntary placement" as meaning
the admission and detention for treatment in a hospital, other medical establishment or
another appropriate place of a person who is suffering from mental disorder and who has
not himself requested such treatment. It was preferred not to use exclusively the term
"hospital" as this term may have a more or less restrictive meaning depending on
the health legislation of each state. In some states, placement can be at the patient's
home or in a host family.
The expression "other...appropriate place" covers such cases.
12. Paragraph 3 of Article 1 is added to cover a particular situation. As the field of
application of the rules is restricted to involuntary placement, the admission of persons
suffering from mental disorder to a medical establishment at their own request is excluded
from it and such a patient should be treated in the same way as any other patient admitted
to hospital. However, it is also possible that a patient originally admitted at his own
request might need placement later, despite his wish to be discharged, because of a
deterioration in his mental health. In this case, if a patient is to be detained against
his wish, the legal protection provided for by the rules shall apply to that patient to
the same extent as to any other patient undergoing placement.
13. This article recognises that it is a matter for doctors (psychiatrists and/or
other doctors according to the national law) to determine, for the purpose of placement,
whether a person is suffering from a mental disorder. It provides moreover that the
diagnosis must be made strictly in accordance with medical science. By medical science in
this article is meant medical science recognised as such by the medical profession at the
time of diagnosis of a mental disorder.
14. The second sentence of this article aims at ensuring that the placement serves no
other purpose than the need to safeguard the health of the patient and to protect his
person or that of others.
Therefore, difficulty of adapting to moral, social, political or other values of
society must not be considered as a mental disorder justifying placement when it is not
accompanied by other important elements which would permit, in accordance with the first
sentence of the article, the diagnosis of the existence of a mental disorder according to
This provision does not rule out that such a difficulty may be considered, according to
medical science, as a symptom of mental disorder but it must not be the only symptom.
15. Article 3 lays down the conditions for placement. By starting with the words
"In the absence of any other means of giving the appropriate treatment", the
article emphasises that placement may be used only when no other means of treatment is
available or is likely to be effective. That is to say that if there is a reasonable
expectation that a treatment without placement (for instance, by prescription of
medicaments to him, or by care given in the community where he lives) might be effective,
placement should not be used.
16. Paragraph a sets down the fundamental principle as regards placement, that
is a patient may undergo placement only if he presents a serious danger to himself or
17. It should be noted that the term "danger", covers not only the case where
the danger is actual but also where there is a serious possibility of injury being caused
to the patient himself or to another person. This makes it possible to take an appropriate
decision in cases where, although the mental disorder does not reflect harmful behaviour,
the doctor has every reason to believe, in accordance with medical science, that injury to
persons may be caused.
Destruction of property may, in certain limited cases, be taken into consideration,
insofar as it gives every reason to believe that the mental disorder might evolve to the
point that the person concerned may be dangerous also for human beings.
18. However, under paragraph b of this article, states may also allow placement,
subject to certain conditions, solely for the benefit of the health of the patient.
Accordingly, states may allow placement without the serious danger required by the first
sub-paragraph only in cases where, because of the serious nature of the mental disorder,
the absence of treatment would lead to the deterioration of the patient's mental disorder
or prevent the appropriate treatment being given to him.
19. This article is based on the consideration that a decision for placement must
be the result of co-operation between judicial or administrative authorities and the
medical profession. In fact, the medical profession, depending on the different
legislations, might be involved either as an authority deciding on placement (it would
then be the "appropriate authority" mentioned in Article 4, paragraph 1) or as
an expert for the judge or administrative body responsible for deciding insofar as it
gives them the medical advice required by paragraph 1 of Article 4.
Whatever the case, since placement is not only a medical measure but also a restriction
of the patient's freedom, it is important that, when the decision is taken by a judge,
medical advice be obtained and, when the decision is taken by another appropriate
authority (administrative body on medical opinion or medical authority alone), the right
be given to the patient to appeal against the decision of that authority to a court. In
order to avoid hardship to the patient, the procedure must in all cases, be simple and
20. In the case of an emergency, the patient may be admitted into an establishment at
once on the decision of a doctor, but the latter is required to inform immediately the
competent judicial or other authority which will decide whether a placement of that
patient is necessary and justified in accordance with Article 3.
There is an emergency when the mental disorder of the patient requires immediate
admission to an establishment and it is not possible to obtain a previous decision by the
21. Paragraph 2 relates to the procedure in those member states where the decision for
placement is taken by a non-judicial body or person.
It was thought that in this case, since a judge does not intervene from the beginning
in the procedure, special safeguards should be granted to the patient.
22. The first safeguard is the requirement that the person or body deciding on
placement must be "different" from the one requesting it. This rule uses this
term instead of the adjective "independent" since, in many states, the
administrative organisation is such that the person or body requesting placement might be
hierarchically subjected to the authority taking the final decision. It was thought
however that the requirement that the person or body requesting placement and the one
deciding it should not be the same constitutes a guarantee of objectivity for the patient.
23. The second safeguard consists of the patient's right of appeal to a court. This is
a reflection of the principle upheld by the European Court of Human Rights applying the
European Convention on Human Rights in the Winterwerp case. Therefore once a
decision of placement is made the patient must immediately be informed of his rights and
may, in any case, make an appeal against that decision to a court.
24. The third safeguard is designed to take into account the fact that the patient,
because of his state of health or the treatment administered to him, may not be in a
position to understand and defend his interests and his next of kin or legal
representative might have an interest in the placement which is contrary to the patient's
interest. It is provided therefore that an appropriate authority will designate a person
for the sole purpose of assisting the patient to decide whether to lodge an appeal against
the decision of placement or not. The person who would be designated to assist the patient
should not necessarily be a lawyer. It should also be emphasised that such a person can be
appointed to assist a given patient, or an appropriate authority or person can be
appointed with the general competence of assisting all the patients, for instance on a
given territory. Of course, the right of appeal of other interested persons remains and it
is for the law of each member state to determine this concept (for example, members of the
patient's family, persons living with the patient, etc.).
25. The fourth safeguard is provided by paragraph 3 of Article 4 which applies also
when the initial decision is taken by a judicial authority. This paragraph requires that
whenever the patient's case, either at first instance or on appeal against a decision of a
non-judicial body, is brought before a court or other competent body, the patient must
have the opportunity to be heard.
26. The aim of this safeguard is to avoid a placement decision being taken solely on
the basis of medical reports. Therefore the patient must have the opportunity of being
heard personally by the judge. This opportunity must be "effective", that is to
say it must not simply be laid down by law but all the measures (information etc.) must be
taken so that the patient can be heard by the judge. Such a provision does not mean that
the patient must be taken before a judge in all cases. It will be for the latter to
decide, together with the doctor responsible, whether the patient should come to the judge
or if the judge must go to him, unless national legislation lays down this last solution
in all cases.
For example, if the judge, in spite of the wish expressed by the patient to be heard
personally, should consider that the patient's state of health would not allow a hearing,
he will have to take measures which allow a representative of the patient to express his
point of view.
27. Paragraph 3 also provides that the patient must benefit from the assistance of a
counsel or of another person. Such assistance - which is different from that provided for
in paragraph 2 of Article 4 - might be either of a legal or other nature. In any case,
such a provision should not be interpreted as giving an absolute right to free legal aid.
This will depend on national legislation. Moreover, such assistance should be given only
if the patient requests it expressly or if the judge (in the countries where he has such a
power) considers it fit.
28. As all judicial decisions concerning placement of a patient inevitably affect his
personal freedom, it is essential that all these decisions should be open to appeal to a
higher court. Paragraph 4 simply states this principle. It should be noted that the term
"appeal" is not used in its legal technical meaning but indicates only the
necessity for two levels of jurisdiction.
29. This article provides that patients suffering from mental disorder and subject
to placement should have a right to receive treatment under the same ethical and
scientific conditions as any other patient suffering from an illness other than mental
disorder. Moreover, it ensues from paragraph 1 of Article 5 that placement must never
serve simply as a means of isolating the patient, but must enable him to receive the
treatment indicated for the state of his health by medical science. In order to ensure
equality between persons suffering from mental disorder and other sick persons, paragraph
1 refers also to the environmental conditions of treatment with a view to emphasising the
importance of providing premises and equipment which are comparable to those available to
other medical departments.
30. For the protection of patients, paragraph 2 of this article concerns some
treatments which, in spite of their particular characteristics which might raise some
doubt as to the advisability of their being administered to involuntarily placed patients,
are considered indispensable in the care of the patient by reason of the state of the
patient's mental health. These particular treatments are: those which are not yet
generally recognised by medical science; those which present a serious risk of causing
permanent brain damage or adversely altering the personality of the patient. Before
administering one of these treatments the doctor must obtain the consent of the patient.
If the patient refuses his consent, no such treatment can be given to him. In cases where
the patient is unable to give his consent because he is not capable of understanding and
evaluating the nature and the consequences of the treatment, the doctor will submit the
matter to an independent authority prescribed by law and only after an authorisation has
been given by that authority may such treatment be administered to the patient. If there
is a legal representative of the patient, he must be consulted by the above-mentioned
31. By using the expression "permanent brain damage", it is intended to
indicate that the patient's consent must be obtained when there is a serious risk that the
treatment will cause damage which is permanent.
The expression "adversely alter the personality of the patient" should be
interpreted as meaning any alteration other than the amelioration of the patient's
pathological behaviour which is a symptom of his mental disorder because this amelioration
is itself the aim of the treatment.
The expression " legal representative" does not mean, as it usually means in
common law countries, a "lawyer". In paragraph 2, it is used in the sense of the
civil law countries where it covers all the persons who, by operation of the law or by
virtue of a court's or other authority's decision, exercise legal rights on behalf of
other persons who are legally incapacitated (for example guardian).
32. Paragraph 3 deals with clinical trials. Without prejudice to the legal regulation
of trials having a therapeutical purpose which is specific for mental disorder (this is a
matter for national law), it was considered that any other clinical trial involving such
persons, whether having a therapeutical purpose or not, should not be permitted. It was
thought that the patients should be protected against such trials even if they consent to
33. This article concerns the limits to the patient's personal freedom.
The basic idea is that the patient must, as far as possible, receive the same
consideration as any other person and that restrictions on his personal freedom must be
confined to measures necessary in the interest of his health and of the treatment.
Placement must never be used to punish or isolate without treatment.
34. Thus, some freedoms must not be subject to restrictions other than those that
ordinary law applies to people in general. The freedoms in question are the freedom to
communicate (in writing or orally) with any appropriate authority, with the person
referred to in Article 4 or with a lawyer, and the right to send letters. The limits on
these rights are set by criminal law, whose purpose is to protect the freedom of others by
preventing or punishing offences. If, for example, the patient uses letters in a way which
is contrary to criminal law (for example to blackmail), then criminal law shall apply with
any restrictions to personal freedom that it might imply.
35. The expression "appropriate authority" was used in order to cover a
number of authorities with which the patient might wish to correspond in order to have his
situation reviewed, for example a health authority or other authority supervising
hospitals, a court or the European Commission of Human Rights in the case of states which,
under Article 25 of the European Convention on Human Rights, recognise the right of
36. Article 7 is to avert a patient's transfer from one establishment to another
solely for administrative reasons and regardless of his therapeutic interests. A patient
may, however, be transferred if his therapeutic interests so require (if, for example, the
required treatment necessitates his placement in a better equipped hospital). Before any
transfer, the patient's wishes must also as far as possible be taken into account.
37. This article concerns the length and the termination of the placement.
It establishes two fundamental principles.
38. The first is that placement must normally be decided for a limited period or for a
period not exceeding the period fixed by law. Whenever no limited period is specified in
the placement order or prescribed by law, the authority ordering the placement must review
at regular intervals the necessity for placement.
39. Paragraph 1 adds to these safeguards the right of the patient to appeal, at
reasonable intervals, to a court for the termination of his placement. This ensures
compliance with the rule stressed by the European Court in the case of X against the
United Kingdom, that Article 5, paragraph 4, of the convention implies that a patient
compulsorily confined in an institution for an indefinite or lengthy period is entitled
"at any rate where there is no automatic periodic review of a judicial character, to
take proceedings at reasonable intervals before a court to put in issue the
"lawfulness" (...) of his detention".
40. The second principle admits that there are no special procedures for the
termination of the placement. It empowers the doctor (competent according to national law)
and the judicial or other competent authority to terminate the placement where the
patient's state of health no longer justifies it. This decision can be taken either at the
instigation of the doctors or authorities concerned or on the application of the patient
or any other interested person.
This principle does not prevent states, in which placement is decided by a judicial
authority, from requiring that the decision to terminate the placement taken by a doctor
is to be submitted to that authority.
41. Paragraph 2 does not refer to the other grounds for termination of the placement
implicit in paragraph 1, namely the expiry of the period specified in the placement order
or prescribed by law, without renewal of the placement order, or a decision to terminate
the placement being taken by the competent authority when carrying out one of its regular
reviews of the necessity for the placement.
42. Since placement is a means of giving treatment, a patient who is entitled to leave
the establishment may no longer require placement, yet still need further treatment.
Termination of the placement therefore does not preclude the doctor's treating the patient
on a voluntary basis.
This rule, embodied in paragraph 3, is particularly designed to emphasise that the
termination of placement is not necessarily conditional on the patient's full recovery and
to encourage the establishment of a voluntary doctor-patient relationship whenever
43. The purpose of paragraph 1 is to ensure that placement is not regarded as a
ground for restricting the patient's legal capacity ipso jure. Any such restriction
must comply with the principles (and procedures) of ordinary law, which generally provides
that legal capacity may be restricted only where the person concerned is unable to
understand or defend his interests.
44. Paragraph 2 concerns the measures which may be taken by the authority ordering the
placement. Placement often gives patients neither time nor opportunity to settle their
affairs. While not imposing a duty on the authority ordering the placement to take
safeguarding action itself, paragraph 2 accordingly makes it responsible for alerting the
competent authorities (for example the social welfare authorities) so that, if no one else
(family member, employee, etc.) is available to look after the patient's affairs, they can
step in to perform services which do not presuppose restrictions in the patient's legal
capacity or the appointment of a legal representative (for example for managing property).
45. This article stresses the principle that a patient undergoing a placement is as
entitled as any other sick person to respect for his dignity, whatever the reasons for his
placement. The words "in all circumstances" are intentionally included to cover
not only the placement in a medical establishment but also every stage of the placement
(for example transport, court proceedings, etc.). The article likewise states that
adequate measures shall be taken to protect the patient's health. This implies that the
patient's general health must not be endangered by the treatment or his mental health
impaired by continuation of the placement even when there is no longer any prospect of
46. This article recognises that states have the power to accept the principles of
the recommendation while adopting, in particular instances, provisions which are different
but which they consider more favourable to patients. If it deems it appropriate, a state
may, for example, in the context of Article 5, completely prohibit a treatment not yet
generally recognised by medical science or a treatment which adversely affects the
personality, even where the patient consents to such treatment.
Recommendation 1235 (1994) footnote 5
on psychiatry and human rights
1. The Assembly observes that there is no overall study on legislation and practice
with regard to psychiatry covering the member states of the Council of Europe.
2. It notes that on the one hand, a body of case-law has developed on the basis of the
European Convention on Human Rights and that on the other, the European Committee for the
Prevention of Torture and Inhuman or Degrading Treatment or Punishment has made a number
of observations with regard to practices followed in the matter of psychiatric placements.
3. It notes that, in a large number of member countries, legislation on psychiatry is
under review or in preparation.
4. It is aware that, in many countries, a lively debate is currently focused on
problems associated with certain types of treatment such as lobotomies and
electroconvulsive therapy as well as on sexual abuse in psychiatric care.
5. It recalls 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
6. It considers that the time has come for the member states of the Council of Europe
to adopt legal measures guaranteeing respect for human rights of psychiatric patients.
7. The Assembly therefore invites the Committee of Ministers to adopt a new
recommendation based on the following rules:
i. Admission procedure and conditions:
a. compulsory admission must be resorted to in exceptional cases only and must
comply with the following criteria:
- there is a serious danger to the patient or to other persons;
- an additional criterion could be that of the patient's treatment: if the absence of
placement could lead to a deterioration or prevent the patient from receiving appropriate
b. in the event of compulsory admission, the decision regarding placement in a
psychiatric institution must be taken by a judge and the placement period must be
specified. Provision must be made for the placement decision to be regularly and
automatically reviewed. Principles established in the Council of Europe's forthcoming
convention on bioethics must be respected in all cases;
c. there must be legal provision for an appeal to be lodged against the decision;
d. a code of patients' rights must be brought to the attention of patients on their
arrival at a psychiatric institution;
e. a code of ethics for psychiatrists should be drawn up inter alia on the basis of the
Hawaii Declaration approved by the General Assembly of the World Psychiatric Association
in Vienna in 1983.
a. a distinction has to be made between handicapped and mentally ill patients;
b. lobotomies and electroconvulsive therapy may not be performed unless informed
written consent has been given by the patient or a person, counsellor or guardian, chosen
by the patient as his or her representative and unless the decision has been confirmed by
a select committee not composed exclusively of psychiatric experts;
c. there must be an accurate and detailed recording of the treatment given to the
d. there must be adequate nursing staff appropriately trained in the care of such
e. patients must have free access to a "counsellor" who is independent of the
institution; similarly, a "guardian" should be responsible for looking after the
interests of minors;
f. an inspection system similar to that of the European Committee for the Prevention of
Torture and Inhuman or Degrading Treatment or Punishment should be set up.
iii. Problems and abuses in psychiatry:
a. the code of ethics must explicitly stipulate that it is forbidden for therapists
to make sexual advances to patients;
b. the use of isolation cells should be strictly limited and accommodation in large
dormitories should also be avoided;
c. no mechanical restraint should be used. The use of pharmaceutical means of restraint
must be proportionate to the objective sought, and there must be no permanent infringement
of individuals' rights to procreate;
d. scientific research in the field of mental health must not be undertaken without the
patient's knowledge, or against his or her will or the will of his or her representative,
and must be conducted only in the patient's interest.
iv. Situation of detained persons:
a. any person who is imprisoned should be examined by a doctor;
b. a psychiatrist and specially trained staff should be attached to each penal
c. the rules set out above and the rules of ethics should be applied to detained
persons and, in particular, medical confidentiality should be maintained in so far as this
is compatible with the demands of detention;
d. sociotherapy programmes should be set up in certain penal institutions for detained
persons suffering from personality disorders.
1. Appendix 2 is only attached for information purposes
and not for consultation purposes.
2. Appendix 3 is only attached for information purposes and
not for consultation purposes.
3.When this recommendation was adopted and
in application of Article 10.2.c of the Rules of Procedure for the meetings of the
Ministers' Deputies, the Representatives of the following member states reserved the right
of their governments to comply or not with the provisions indicated below of the rules
appended hereto :
- The Federal Republic of Germany: Articles 3.a and 6.b;
- Ireland: Articles 4.2 last sentence and 3 last sentence, and 9.2;
- Liechtenstein: Articles 4.2 last sentence and 3 first sentence, and
- The Netherlands: Articles 3.a, 4.4 and 6;
- Sweden: Article 6.b
- Switzerland: Articles 4.1 last sentence, final phrase, and 2 last
sentence, and 6.b;
- The United Kingdom: Articles 4.2 last sentence and 3 last sentence,
4 Assembly debate on 12 April 1994 (10th Sitting) (see Doc.
7040, report of the Committee on Legal Affairs and Human Rights, Rapporteur: Mr Stoffelen;
and Doc. 7048, opinion of the Social, Health and Family Affairs Committee, Rapporteur: Mr
5. Text adopted by the Assembly on 12 April 1994 (10th Sitting).