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The Committee on Bioethics of the Council of Europe over the last years has been preparing a new legal instrument on the use of coercion in psychiatry. The instrument is technically a Protocol to the Biomedical Convention, and draws its power from being an extension of that Convention. New research of original documents of the Council of Europe found that at the roots of the reference works, that the Committee on Bioethics base the Protocol on, is a text of a legal document that was created to authorize Eugenics caused legislation and practices. This is known to the Committee, even if the Chair has not informed all of its members of it.

The Committee so far has been pushing forward on finalizing the Protocol for vote on 2nd November 2021, while being aware that it will put all of the Council of Europe member states in a legal conflict, as the Protocol is in contradiction to an international human rights convention ratified by 46 of the 47 Council of Europe member states. The Committee on Bioethics has nevertheless proceeded thus perpetuating a Eugenics ghost in Europe and destroying international efforts to create universal human rights for all.

The Protocol versus international human rights

The Committee on Bioethics is working based on directions from the Council’s decision-making body, the Committee of Ministers, stated in its terms of references. The Committee of Ministers however operate on information on this specialized issue that has been phrased and provided by the Bioethics Committee. It has been coordinated since the beginning by Ms. Laurence Lwoff, the Secretary of the Committee.

In this way the Bioethics Committee has been able to lay in a politically defendable line to its senior body and the world at large, while in reality operating with another agenda.

This started already before the decision to actually draft an additional protocol had been taken by the Committee of Ministers. In 2011 an informal exchange of views on the international human rights treaty, the United Nations’ Convention on the Rights of Persons with Disabilities (CRPD), in particular Article 14 – Liberty and security of person, was held within the Committee on Bioethics. The Committee considered how such a Council of Europe Protocol could conflict with the CRPD, particularly in regards to involuntary treatment and placement measures.

The Convention and its General Comments are clear. The United Nations Committee on the Rights of persons with Disabilities nevertheless in a statement to the Committee on Bioethics later clarified that “involuntary placement or institutionalization of all persons with disabilities, and particularly of persons with intellectual or psychosocial disabilities, including persons with ‘mental disorders’, is outlawed in international law by virtue of article 14 of the Convention, and constitutes arbitrary and discriminatory deprivation of liberty of persons with disabilities as it is carried out on the basis of actual or perceived impairment.”

The United Nations Committee further pointed out that States parties must “abolish policies, legislative and administrative provisions that allow or perpetrate forced treatment, as it is an ongoing violation found in mental health laws across the globe, despite empirical evidence indicating its lack of effectiveness and the views of people using mental health systems who have experienced deep pain and trauma as a result of forced treatment.”

“Involuntary commitment of persons with disabilities on health care grounds contradicts the absolute ban on deprivation of liberty on the basis of impairments (article 14(1)(b)) and the principle of free and informed consent of the person concerned for health care (article 25).”

– United Nations Committee on the Rights of persons with Disabilities, Statement to the Council of Europe Committee on Bioethics, published in DH-BIO/INF (2015) 20

The Committee on Bioethics of the Council of Europe as a result of the exchange of views within the Committee itself adopted a Statement on the United Nations Convention on the Rights of Persons with Disabilities in November 2011. The statement while seemingly concerning the CRPD factually only consider the Committee’s own Convention, and its reference work – the European Convention on Human Rights.

The statement lays out that the Committee considered the United Nations Convention on the rights of persons with disabilities, particularly whether articles 14, 15 and 17 were compatible with “the possibility to subject under certain conditions a person who has a mental disorder of a serious nature to involuntary placement or involuntary treatment, as foreseen in other national and international texts.”

Comparative text on the key point in the statement of the Committee on Bioethics:

Statement on the CRPD: “Involuntary treatment or placement may only be justified, in connection with a mental disorder of a serious nature, if from the absence of treatment or placement serious harm is likely to result to the person’s health or to a third party.”

Convention on Human Rights and Biomedicine, Article 7: “Subject to protective conditions prescribed by law, including supervisory, control and appeal procedures, a person who has a mental disorder of a serious nature may be subjected, without his or her consent, to an intervention aimed at treating his or her mental disorder only where, without such treatment, serious harm is likely to result to his or her health.”

With this in place the Committee on Bioethics could proceed formulating a new legal instrument, making it appear that it would be in accordance with the international human rights, to which the Council’s member states are bound. The Committee got a new mandate for 2012 and 2013 including the task of preparing a draft legal instrument “concerning the protection of persons with mental disorder with regard to involuntary treatment and placement.”

Parliamentary Assembly concern and recommendation to withdraw protocol

While this work of the Committee was not public, it was discovered and on the 1st of October 2013 the Committee on Social Affairs, Health and Sustainable Development of the Parliamentary Assembly of the Council of Europe tabled a Motion for a recommendation related to the elaboration of this new legal instrument.

The Parliamentary Committee in the motion noted with reference to the CRPD, that “Today, it is the very principle of involuntary placement and treatment of people with psychosocial disability that is being challenged. The Assembly also notes that despite guarantees established, involuntary placement and treatment are per se prone to abuse and human rights violations, and people subjected to such measures report overwhelmingly negative experiences.”

The Parliamentary Committee motion led to an extensive examination of the matter resulting in a committee report “The case against a Council of Europe legal instrument on involuntary measures in psychiatry” adopted in March 2016. Out of this came a Recommendation to the Committee of Ministers noting that the Parliamentary Assembly understands the concerns that prompted the Committee on Bioethics to work on this issue, but also that it has “serious doubts about the added value of a new legal instrument in this field.”

The Assembly added that its “main concern about the future additional protocol relates to an even more essential question: that of its compatibility with the United Nations Convention on the Rights of Persons with Disabilities (CRPD).”

The Assembly concluded that “any legal instrument that maintains a link between involuntary measures and disability will be discriminatory and thus violate the CRPD. It notes that the draft additional protocol maintains such a link, as having a ‘mental disorder’ constitutes the basis of the involuntary treatment and placement, together with other criteria.”

The Assembly ended off with the recommendation that the Committee of Ministers instruct the Committee on Bioethics to “withdraw the proposal to draw up an additional protocol concerning the protection of human rights and dignity of persons with mental disorder with regard to involuntary placement and involuntary treatment.”

This Parliamentary examination and Recommendation also considered responses of a public hearing, that had taken place in 2015. The hearing had resulted in clear warnings or responses against the Draft Additional Protocol from the Commissioner on Human Rights of the Council of Europe, the European Union’s Agency for Fundamental Rights (FRA), the United Nations’ Committee on the Rights of persons with Disabilities (CRPD), United Nations Special Rapporteur on the Rights of Persons with Disabilities, United Nations’ Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, and a series of stake holders including important patient associations.

The Bioethics Committee response

The direction of the work on the new Protocol did not change significantly. The Committee allowed stake holders to attend its meetings and it posted information on the work on its website. But the direction in the large perspective did not change.

The Committee on its website announced, that the objective of this new Protocol is to develop, for the first time in a legally binding instrument, the provisions of Article 7 of the Convention on Human Rights and Biomedicine, as well as those of Article 5 § 1 (e) of the European Convention on Human Rights. The Protocol aims at setting out the fundamental guarantees with regard to this very exceptional possibility of interference in the rights to freedom and autonomy of persons.

The reference texts for the elaboration of the Protocol were clearly noted as the Convention on Human Rights and Biomedicine, and the European Convention on Human Rights. The Preamble of the Additional Protocol state it, and numerous other mentions note it, including the Council of Europe Bioethics webpage on Mental health, Basis for the Work and Objective of the Additional Protocol concerning the protection of human rights and dignity of persons with mental disorders.

The Committee further added a section on its webpage that, “The work is also carried out in the light of the United Nations Convention on the Rights of Persons with Disabilities (see also the Statement adopted by the CDBI), and other relevant legal instruments adopted at the international level.” The statement referred to is the statement on the CRPD of 2011 that was designed to make readers believe the Committee would take the CRPD in to consideration, while it in fact completely has been neglecting it and the spirit with which it is to be understood and applied. The Committee on its webpage up to present time has forwarded the viewpoint of this 2011 statement with the seeming intention of misleading any concerned person going on the website of the Council of Europe to find out what this is about.

Root viewpoint of the Protocol

The reference works for the Protocol that the Committee on Bioethics work on is Article 7 of the Convention on Human Rights and Biomedicine, which in turn is an elaboration of Article 5 § 1 (e) of the European Convention on Human Rights.

The European Convention on Human Rights was drafted in 1949 and 1950. In its section on the right to liberty and security of person, Article 5 § 1 (e), it notes an exception of “persons of unsound mind, alcoholics or drug addicts or vagrants.” The singling out of persons considered affected by such social or personal realities, or differences in viewpoints has its roots in widespread discriminatory viewpoints of the first part of the 1900s.

The exception was formulated by representative of the United Kingdom, Denmark and Sweden, led by the British. It was based on a concern that the then drafted human rights texts sought to implement Universal human rights including for persons with mentally disorders (psychosocial disabilities), which conflicted with legislation and social policy in place in these countries. Both the British, Denmark and Sweden were strong proponent of eugenics at the time, and had implemented such principles and viewpoints in to legislation and practice.

The targeting of persons with “unsound mind” was driven by the British, that had adopted legislation in 1890 and further specified with the Mental Deficiency Act of 1913, that establishing the means to segregate “mental defectives” in asylums.

The Mental Deficiency Act had been proposed and pushed by Eugenicists. At the height of operation of the UK Mental Deficiency Act, 65,000 people were placed in “colonies” or in other institutional settings. In both Denmark and Sweden had eugenic laws been enacted during the 1930s, in Denmark specifically authorizing the deprivations of liberty of non-dangerous mentally disordered persons.

It is in the light of the widespread acceptance of eugenics as an integral part of the social policy for population control that one has to view the efforts of the representatives of the United Kingdom, Denmark and Sweden in the European Convention of Human Rights drafting process pushing for government authorization to segregate and lock up and remove from society “persons of unsound mind, alcoholic or drug addicts and vagrants”.

“In the same manner as the Oviedo Convention, it must be acknowledged that the European Convention on Human Rights (ECHR) is an instrument which dates from 1950 and the text of the ECHR reflects a neglect and outdated approach concerning the rights of persons with disabilities. Moreover, in matters concerning mental health detention, the 1950 text explicitly permits deprivation of liberty on the basis of ‘unsound mind’ (Article 5(1)(e)). Even though the ECHR is considered to be a ‘living instrument…which must be interpreted in the light of present day conditions’.”

–        Ms. Catalina Devandas-Aguilar, UN Special Rapporteur on the rights of persons with disabilities

The underlying viewpoint of the additional protocol to the Convention on Human Rights and Biomedicine thus – despite its seeming intend of protecting human rights – in reality is perpetuating a discriminatory policy tainted by eugenic principles, despite the actual words used. It is not promoting human rights; in fact, it contradicts the absolute ban on deprivation of liberty on the basis of impairments as laid out by the United Nations Committee on the Rights of Persons with Disabilities.

@Photo from: THIX Photo

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Human Rights

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