Recommendation CM/Rec(2009)3
of the Committee of Ministers to member states
on monitoring the protection of human rights and dignity of persons with mental disorder

(Adopted by the Committee of Ministers on 20 May 2009
at the 1057th 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 common action at European level will promote better protection of the human rights and dignity of persons with mental disorder;

Having regard, in particular:

− to the Convention for the Protection of Human Rights and Fundamental Freedoms (ETS No. 5, 4 November 1950) and to its application by the organs established under that Convention;

− to the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine (“Convention on Human Rights and Biomedicine”) (ETS No. 164, 4 April 1997);

− to its Recommendation Rec(2004)10 to member states concerning the protection of the human rights and dignity of persons with mental disorder;

− to its Recommendation Rec(2006)2 to member states on the European Prison Rules;

− to its Recommendation No. R (98) 7 to member states concerning the ethical and organisational aspects of health care in prison;

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

Having further regard:

− to the work of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT);

− to the work of the World Health Organisation (WHO), in particular the Mental Health Action Plan for Europe “Facing the Challenges, Building Solutions”, and to the corresponding Mental Health Declaration for Europe endorsed at the WHO European Ministerial Conference on Mental Health, held in Helsinki in January 2005;

− to the work of the European Union, in particular the Green Paper “Improving the mental health of the population: Towards a strategy on mental health for the European Union” and the European Pact for Mental Health and Well-being, adopted at the European Union High-Level Conference, held in Brussels in 2008;

Considering that the development and implementation of member states’ national strategies for mental health should:

− promote better understanding of mental health;

− provide more accessible and appropriate services based on individual needs;

− work towards the reduction of the stigma of, and discrimination against, people with mental disorder; and

− ensure better protection of the human rights and dignity of persons with mental disorder;

Considering that national strategies should provide adequate resources to support legal processes that underpin the protection of human rights and dignity, to develop services that are community based and to improve the care and treatment provided within health and social care;

Recalling that the development of national strategies should move mental health care and treatment from the margins of health policy and planning and treat them as essential elements in the development of socially cohesive societies;

Recalling that developments in the role of medical and other relevant non-medical professionals in the care and treatment of people with mental disorder will require not only regulatory frameworks, but also the need for further appropriate training and supervision;

Bearing in mind that all those involved in the care of people with mental disorder have a responsibility to ensure the protection of their human rights and dignity;

Bearing in mind that it is therefore necessary to work in partnership with, and provide information and support to, persons with mental disorder and those that support them, as well as the organisations that represent them,

Recommends that the governments of member states use the checklist that forms the appendix to this recommendation as the basis for the development of monitoring tools to assist in determining their level of compliance with Recommendation Rec(2004)10 of the Committee of Ministers to member states in order to protect the dignity and human rights of persons with mental disorder and ensure appropriate care for them.

Appendix to Recommendation CM/Rec(2009)3

Principle 1 – Non-discrimination

Primary derivation

Recommendation Rec(2004)10 of the Committee of Ministers to member states concerning the protection of the human rights and dignity of persons with mental disorder: Article 3 and its explanatory memorandum, paragraphs 39-45.

Meaning

Non-discrimination in this context means the avoidance of unfair discrimination against people with a history of mental disorder, a current mental disorder, or who have undergone psychiatric treatment or received a diagnosis of mental disorder. This discrimination can occur in many domains of life, such as health care, social care, housing or employment. It can be both direct and sanctioned officially or indirect, the latter being more difficult to tackle. Non-discrimination may include positive action or “reasonable adjustments” to help people to participate in society as full citizens.

Examples of measures

There is no established single line of intervention against discrimination that has a strong evidence base. However, states may find some of the following measures helpful:

i. the development of legal instruments that make it unlawful to discriminate either against people with disabilities or differences, either generally or specifically against people with a psychiatric disability, in various domains of life, such as employment;

ii. administrative measures that encourage the employment of people with such disabilities (for example quotas, workplace adjustments) coupled with services that enable access to employment, such as supported employment;

iii. anti-stigma campaigns via a variety of mechanisms (for example through mass media advertising or non-governmental organisation (NGO) publicity);

iv. anti-stigma training for key groups of workers such as the police or teachers.

Questions/Indicators

General question

Supplementary indicators

Is discrimination prohibited by law?

Is discrimination against people with mental disorders specifically prohibited?

Is discrimination in society monitored?
Are relevant data and empirical evidence available?

Where and how is it monitored?
Is civil society (NGOs) involved in this process?

Q1.1

Q1.1.a

Q1.1.b

Q1.1c

Is there an anti-discrimination campaign?

What mechanisms are used to campaign and in what settings?

What resources are allocated?

Is impact monitored, how and with what result?

Q1.2

Q1.2.a

Q.1.2.b

Q.1.2.c

Do public agencies encourage the employment of people with mental disorders?

Are there any quotas and are they monitored?

Are there effective measures to promote employment, such as rehabilitation programmes and supported employment schemes?

Is discrimination in the workplace monitored?

Q1.3

Q.1.3.a

Q.1.3.b

Q.1.3.c

Is there equitable access for people with mental disorder to public services, including housing, in all parts of the country?

Is there equitable access to health care?
Is there equitable access to care for people with mental disorder detained in prison or the penal system?

Are standards on an equal footing for both mental and physical health-care provision?

Is there equitable access to welfare benefits?

Q1.4

Q.1.4.a

Q.1.4.b

Q1.4.c

What percentage of people with mental disorders receive treatment?

     

Q1.5

     

Principle 2 – Civil and political rights

Primary derivation

Recommendation Rec(2004)10 of the Committee of Ministers to member states concerning the protection of the human rights and dignity of persons with mental disorder: Articles 4 and 13 and its explanatory memorandum, paragraphs 46-49.

Meaning

This principle goes hand-in-hand with the principle of non-discrimination. People with mental disorders must be allowed, wherever possible and practicable, to exercise their civil and political rights. Examples of such rights might include the right to be free from inhuman and degrading treatment, the right to respect for private and family life, the right to vote and the right to hold a public office, if capable. Confidentiality of medical records is a key part of private life in such circumstances.

Examples of measures

States may find the following types of policy interventions useful:

i. legal measures to uphold the rights of the group in question;

ii. administrative measures to uphold rights, often in support of existing legal measures;

iii. the creation of monitoring agencies (for example, a mental health/welfare commission) or use of generic monitoring agencies, for example to undertake visits to institutions;

iv. training of staff in upholding rights;

v. creation of advocacy schemes to support the exercise of rights, whether in the state sector, in NGOs or informal or user-led schemes;

vi. more general measures to encourage participation via advocacy and information, user groups, or community activities.

Questions/Indicators

General question

Supplementary indicators

Are people with mental disorder allowed to vote?

Are people in any type of mental health institution entitled to vote?

Are there other rights that are compromised due to someone’s mental health status?

Q2.1

Q2.1.a

Q2.1.b

Are people with mental disorder allowed to hold public office?

   

Q.2.2

   

Are people with mental disorder allowed to start a family?

Are there laws or practices on sterilisation/castration that might undermine this right?

 

Q2.3

Q2.3.a

 

Is privacy respected both in institutions and in the community?

Are people allowed private mail, meetings or telephone conversations?

 

Q2.4

Q2.4.a

 

Is there an inspection agency that is able to ensure rights are upheld?

How often does it visit the institutions or people concerned?

Are its reports in the public domain?

Q2.5

Q2.5.a

Q2.5.b

Is information provided to patients on their rights in an appropriate way?

Is there a clear authority patients can go to in order to appeal against or challenge violations of their rights?

 

Q2.6

Q2.6.a

 

What is the extent of advocacy schemes is there a legal and institutional framework for advocacy?

Are advocates independent?

Can they meet with patients in private?

Q2.7

Q2.7.a

Q2.7.b

How is the confidentiality of all mental health patient records protected?

Is access to these records regulated?

Are patients, advocates or those close to patients able to access records when appropriate?

Q2.8

Q2.8.a

Q2.8.b

Are the rights of people with mental disorder from minority groups protected?

Are people allowed to practice their religion?

Are they allowed to speak in their mother tongue and are they given access to translation and/or interpretation, if necessary?

Q2.9

Q2.9.a

Q2.9.b

What choice is offered to people with mental disorder on such issues as where they live or work?

   

Q2.10

   

Principle 3 – The promotion of physical and mental health

Primary derivation

Recommendation Rec(2004)10 of the Committee of Ministers to member states concerning the protection of the human rights and dignity of persons with mental disorder: Article 5 and 10 and its explanatory memorandum, paragraphs 50 and 69-79.

Meaning

There are two separate but related aspects to the principle of health promotion:

i. aiming to promote the mental health of the whole population and of whole communities within it (namely, public mental health), including people who are in good mental health, those who are vulnerable and those with mental disorder; this is supported by general public health principles;

ii. attending to the needs of people with mental disorder regarding care for their general physical and mental health, as this is often compromised by poor access to health care, diagnostic “overshadowing”, discrimination and systemic inequalities.

Examples of measures

There is a considerable range of relevant policy interventions to promote mental health and to promote the physical health of people with mental disorder. States may wish to consider the following:

i. some countries have developed public health or mental health improvement programmes covering information, resilience building, community development and other interventions to improve the population’s mental health. Some of these address health holistically and some specifically address mental health. Many are setting-specific (for example, mental health in schools), and financed by volunteer-led or nationally funded programmes;

ii. in terms of physical health for people with mental disorder, these programmes can also range from health promotion campaigns (for example, through exercise or diet) through to improving access to health care, either via mainstream care, by providing general medical services within mental health institutions or through the use of screening programmes and health checks.

Questions/Indicators

General question

Supplementary indicators

What national, regional or local programmes exist to promote mental health?

What resources are allocated to these programmes?

Are people with mental health problems offered any help to improve their general mental and physical health?

Are there programmes for preventing completed suicide and suicide attempts?

Q3.1

Q3.1.a

Q3.1.b

Q3.1.c

What is known about the physical health status of people with mental disorder in all settings (health, social care, community)?

Do they have any support or services to help treat physical health problems?

Is there a system to monitor the mortality of people with mental disorder by major disease groups?
If so, what are the mortality rates by major disease groups?

 

Q3.2

Q3.2.a

Q3.2.b

 

Is the mental health and well-being of the general population monitored?

If so, how is it changing over time?

How do these figures break down by region, gender, age, etc.?

 

Q3.3

Q3.3.a

Q3.3.b

 

Principle 4 – The protection of vulnerable persons

Primary derivation

Recommendation Rec(2004)10 of the Committee of Ministers to member states concerning the protection of the human rights and dignity of persons with mental disorder: Articles 7 and 14 and its explanatory memorandum, paragraphs 55-57.

Meaning

People with mental disorders may be vulnerable to physical or sexual abuse, neglect or economic abuse for a variety of reasons, whether due to cognitive impairment or other reasons detailed in the explanatory memorandum to Recommendation Rec(2004)10. Policy measures and staff awareness are both necessary to protect vulnerable individuals from abuse or neglect.

Examples of measures

Many countries have legislation to protect vulnerable people or people lacking mental capacity from abuse, with varying definitions relating to capacity or vulnerability. States may wish to consider adopting the following additional mechanisms to ensure satisfactory protection:

i. creating administrative systems within health or social care agencies or municipalities in order to identify vulnerable people and protect them;

ii. creating an agency to oversee vulnerable people’s affairs;

iii. using NGOs or advocates to provide independent support for vulnerable people;

iv. using criminal justice agencies to pursue abusive individuals;

v. training mental health staff and other professionals to look for warning signs and seek advice;

vi. using judicial authorities to appoint attorneys/guardians or similar to look after the best interests of vulnerable people.

These protective mechanisms should also address the participation of persons with mental disorder in biomedical research.

Questions/Indicators

General question

Supplementary indicators

Is there legislation to protect vulnerable people?

What resources are deployed to implement this legislation?

What is the level of prosecutions for abuse, neglect or fraud in relation to vulnerable persons?

Is an agency charged with overseeing the legislation?

Do the regulations cover biomedical research?

Q4.1

Q4.1.a

Q4.1.b

Q4.1.c

Q4.1.d

Is clear information on capacity issues available to all concerned?

Are research staff informed about vulnerability issues?

Is there a clear distinction between the presence of mental disorder and capacity/incapacity?

   

Q4.2

Q4.2.a

Q4.2.b

   

Are vulnerable individuals assigned guardians, advocates or supporters?

What measures are taken to ensure the quality of such guardians?

     

Q4.3

Q4.3.a

     

Are there measures in place to report and investigate suspected physical or sexual abuse?

       

Q4.4

       

Are treatments and care settings culturally appropriate and suitable for the needs of minority groups?

       

Q4.5

       

Principle 5 – The quality of living conditions, services and treatment

Primary derivation

Recommendation Rec(2004)10 of the Committee of Ministers to member states concerning the protection of the human rights and dignity of persons with mental disorder: Articles 9-12, 27, 28, 36, 37 are of general relevance to service provision and its explanatory memorandum, paragraphs 63-98.

Meaning

Quality in this context refers to a range of issues covering:

i. basic standards of accommodation, treatment and staff behaviour that guarantee the basic right to human dignity;

ii. whether accommodation is appropriate, services and treatment are therapeutic;

iii. whether they conform with accepted international standards;

iv. whether they are satisfactory, first of all to the person concerned, and to those close to the person, staff and advocates, taking into account any relevant international and national norms for health care, housing etc.;

v. whether services or treatment are evidence-based and take account of various types of evidence and various relevant disciplines (for example, medicine, social science, management science, psychology).

These are complex issues that will vary from one state to another according to the location and nature of the care system. In some ways it is harder to monitor the quality of care for patients in the community than in institutions. However, certain general principles can be applied.

In order to achieve high quality it is essential that services, however they are organised, have well-defined governance administrative arrangements so that it is clear who holds ultimate responsibility for quality, and for dealing with complaints or incidents.

Examples of measures

Quality assurance in some form or another tends to be the fundamental basis of policy for many member states, based on a wider evidence base that applies across health and social care and even public- and private-sector management generally. Such measures may include:

i. the setting of quality standards nationally, regionally and locally;

ii. clinical governance, in other words the monitoring and supervision of clinical practice to ensure that it meets quality standards and is in accordance with the best available evidence;

iii. the creation of regulatory agencies to deal with poor-quality facilities, staff or practices;

iv. the encouragement of consumer involvement, NGOs and the creation of incentives to improve quality;

v. the establishment of mechanisms to encourage or enforce evidence-based care and treatment.

Questions/Indicators

General question

Supplementary indicators

Are there national, regional or local standards concerning living conditions and treatment?

How are these standards monitored? Do they cover all the main aspects of living conditions and treatment?

What proportion of services/facilities meet these standards?

Do the standards meet or exceed the minimum level as set out by the CPT (the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment)?

Q5.1

Q5.1.a

Q5.1.b

Q5.1.c

Is there a registration or other regulatory framework for service providers?

Are there mechanisms for complaints to be received from interested parties?

Is the regulator independent and can he or she suspend registration?

Is there a regulatory system for staff as a whole or for relevant staff groups that covers eligibility to practice?

Q5.2

Q5.2.a

Q5.2.b

Q5.2.c

Is there a national service plan/framework to develop services?

What funding is allocated for strategic development?

Who is responsible for delivery over what time scale?

Does the plan outline the contribution of general services (for example, health, social care, housing)?

Q5.3

Q5.3.a

Q5.3.b

Q5.3.c

Do plans or standards cover the criminal justice and penal system?

     

Q5.4

     

Is there a system nationally, locally or regionally, to monitor the quality of clinical practice (clinical governance)?

Is there a source of guidance/direction on evidence-based treatment that can inform practice and clinical governance or supervision?

   

Q5.5

Q5.5.a

   

Is the governance of service providers clear and understood?

Is information available on governance mechanisms for patients and those close to them?

   

Q5.6

Q5.6.a

   

Is there a system of individual care planning?

Is each patient’s care regularly reviewed?

Are plans explained or disclosed to patients?

 

Q5.7

Q5.7.a

Q5.7.b

 

Is basic information collected on the need for services?

Are there data on epidemiology, levels of need, etc., to support planning?

   

Q5.8

Q5.8.a

   

Are there measures to monitor changes over time in a range of indicators reflecting the quality of mental health services?

Are there measures to monitor re-admission rates in psychiatric in-patient facilities over time?

   

Q5.9

Q5.9.a

   

Are there specific mechanisms for ensuring all patients give informed consent, where they are able to do so?

Is adequate information on services and treatments given to patients and advocates?

   

Q5.10

Q5.10.a

   

Are there suitable arrangements for workforce development to support quality in services?

Is the supply of workers in each discipline adequate?

   

Q5.11

Q5.11.a

   

Is the availability of effective therapeutic and rehabilitative care adequate?

     

Q5.12

     

Are there mechanisms allowing for the participation of patients and those close to them in programme planning, health service delivery and evaluation?

     

Q5.13

     

Principle 6 – Least restrictive alternative

Primary derivation

Recommendation Rec(2004)10 of the Committee of Ministers to member states concerning the protection of the human rights and dignity of persons with mental disorder: Articles 3 and 8 and its explanatory memorandum, paragraphs 39-45 and 58-62.

Meaning

People with mental disorder should be cared for in the way and in the setting that least restricts their liberty and ability to live a normal life and to participate in the life of the community. This principle must be continuously balanced against the need to provide appropriate treatment (subject to consent provisions) and the protection of their health and safety and the safety of others.

Examples of measures

The key to being able to realise this principle is the provision of a range of services that allows patients to receive care in the setting and manner that is least restrictive for them. Many member states have developed such a range of services in different ways, and there is a large body of literature on this. Deinstitutionalisation is a large part of this agenda, but it has been recognised that:

i. institutions can vary in their level of restriction, and this principle should apply to institutions as well as other services;

ii. community services can be as restrictive as institutions if they are poorly designed.

Questions/Indicators

General question

Supplementary indicators

Are people with mental disorder allowed to refuse treatment (except where due process has determined involuntary treatment)?

In cases of involuntary placement, are people allowed to refuse treatment?

What mechanisms exist to monitor the use of seclusion and/or restraint?

 

Q6.1

Q6.1.a

Q6.1.b

 

Do clinical practice guidelines on seclusion and restraint exist?

How are these guidelines monitored?
Do they include an obligation to register and report every instance of seclusion and restraint?

Is there an independent review of any decision to apply seclusion or restraint?

What actions exist to progressively reduce the need to apply restraint or seclusion?

Q6.2

Q6.2.a

Q6.2.b

Q6.2.c

Does a range of facilities for care including non-institutional care exist?

If not, are there plans in place to develop such a range of facilities?

Are home or community treatment options available or planned?

Is adequate aftercare provided to support life in the community after discharge?

Q6.3

Q6.3.a

Q6.3.b

Q6.3.c

Is primary health care equipped to help people with mental disorders?

     

Q6.4

     

Is there any choice of treatment options?

Are there alternatives to medication?

   

Q6.5

Q6.5.a

   

Where care is institutional what measures are in place to minimise restrictions on normal life?

Are there arrangements for day activities, community involvement, etc.?

Are there visiting arrangements?

Can patients communicate with society at large by phone, mail, etc.?

Q6.6

Q6.6.a

Q6.6.b

Q6.6.c

Are patients in mental health facilities individually informed of their rights and of the house rules in writing or in another form they can understand?

Are the house rules of mental health facilities subject to independent scrutiny?

   

Q6.7

Q6.7.a

   

Is there a system to monitor the rates per 100 000 population of the use of the occurrence of both involuntary placement and treatment?

     

Q6.8

     

Principle 7 – The quality of the legal framework for mental health and its implementation and monitoring

Primary derivation

Recommendation Rec(2004)10 of the Committee of Ministers to member states concerning the protection of the human rights and dignity of persons with mental disorder: Chapter III, and its explanatory memorandum, paragraphs 119-224.

Meaning

Good quality legislation and monitoring methods are indispensable in order to ensure that people’s rights are protected when they are involuntarily placed in relevant institutions and/or involuntarily treated because of their mental disorder. This is dealt with in great detail in Recommendation Rec(2004)10 of the Committee of Ministers to member states concerning the protection of the human rights and dignity of persons with mental disorder.

Examples of measures

Many countries have mental health legislation, but some use wider legislation (for example, on mental capacity) to regulate mental health-related involuntary placement and involuntary treatment. These laws are well documented. Many countries also have public reports from monitoring agencies on a regular basis.

Questions/Indicators

General question

Supplementary indicators

Is there a comprehensive legal framework (whether separate or as part of wider legislation) that protects the rights and dignity of persons with mental disorder?

Does it comply with the principles set out in Recommendation Rec(2004)10?

Is there an appropriate scrutiny of records documenting involuntary placement and involuntary treatment?

 

Q7.1

Q7.1.a

Q7.1.b

 

Is there a national monitoring agency that ensures compliance with the legislation?

Does it report regularly?

Are those reports published?

Are there links with other quality assurance mechanisms, for example, registration arrangements?

Q7.2

Q7.2.a

Q7.2.b

Q7.2.c

Does an independent agency monitor deaths and serious incidents amongst detained patients?

Are such reports published?

   

Q7.3

Q7.3.a

   

Is there clear guidance and training for staff on the legislation?

Are there training programmes for the police on relevant aspects of the mental health legislation and on dealing with people with mental disorder?

   

Q7.4

Q7.4.a

   

Does the legislation include appeals procedures?

Are appeals heard by independent and appropriately qualified individuals?

Is there a clear complaints procedure?

 

Q7.5

Q7.5.a

Q7.5.b

 

Is information on the law available to patients and families?

Do patients and those close to them have access to independent advocacy?

   

Q7.6

Q7.6.a

   

Is there an appropriate legal framework for dealing with offenders with mental disorder?

Can mental health care be accessed by those detained in criminal justice or penal settings?

Is there independent scrutiny of the therapeutic environment in forensic establishments?

 

Q7.7

Q7.7.a

Q7.7.b

 

Is there a clear definition of what constitutes voluntary hospitalisation?

Who determines whether it is voluntary and are there arrangements for guaranteeing the rights of hospitalised adults without legal capacity?

   

Q7.8

Q7.8.a

   

Are there clear admission procedures for both voluntary and involuntary patients?

At what stage is the patient’s mental state assessed?

   

Q7.9

Q7.9.a

   

Are patients encouraged to express their views about future treatment when well enough to do so?

     

Q7.10

     

Are there suitable arrangements for dealing with the detention of children?

Are there arrangements for involving parents, guardians or carers in the decision to detain a child?

   

Q7.11

Q.11.a

   

Principle 8 – Taking account of the rights and needs of those close to people with mental disorder

Primary derivation

Recommendation Rec(2004)10 of the Committee of Ministers to member states concerning the protection of human rights and dignity of person with mental disorder: Article 15 and its explanatory memorandum, paragraphs 95, 103 and 112-114.

Meaning

In Europe, persons with a mental disorder are mainly taken care of by their families and people close to them. Yet the physical and mental health of these informal carers can be under threat as a result of mental disorder within the family. Some mental disorders should be seen in the context of the family (biological, psychological and social). There is a need to pay attention to the rights and needs of non-professional carers and those who are dependent on persons with mental disorder, particularly children.

Examples of measures

Policy interventions to support those close to the patient, and especially carers, are relatively poorly developed internationally, but examples may include:

i. rights for carers set out as part of legal instruments concerning mental health generally, for example, the right to be involved in the process of taking persons with mental disorder into care and involuntary placement in institutions;

ii. the provision of support services for carers and those close to the patient, such as a carer’s assessment, counselling, respite care, etc.;

iii. the development of mutual support groups and information tailored to the person’s needs, often led by NGOs.

Questions/Indicators

General question

Supplementary indicators

Is there a mechanism for assessing the needs of those close to the patient?

Are there any services to support carers and others close to the patient?

Are there plans to develop such services in the future?

What resources are devoted to public and/or NGO services and support for carers and those close to the patient?

Q8.1

Q8.1.a

Q.8.1.b

Q8.1.c

Are there mechanisms for seeking the views of those close to the patient as part of formal and informal care processes?

Are there self-help groups and other social networks for carers?

   

Q8.2

Q8.2.a

   

Are there mechanisms for assessing the needs of dependants, particularly children?

     

Q8.3

     


 Top

 

  Related Documents
 
   Meetings
 
   Other documents