The Parliamentary Assembly of the Council of Europe in the end of April approved a Recommendation and a Resolution on the deinstitutionalisation of persons with disabilities. These are providing important guidelines in the process of implementing human rights in this field for the years to come. The senior decision-making body of the Council of Europe, the Committee of Ministers, as part of the final process now asked three of its committees to review the Assembly Recommendation and provide possible comments by mid-June. The Committee of Ministers is then to finalize its and thereby the Council of Europe’s stand on the deinstitutionalisation of persons with disabilities.
The Parliamentary Assembly reiterated in its Recommendation the urgent need for the Council of Europe, “to fully integrate the paradigm shift initiated by the United Nations Convention on the Rights of Persons with Disabilities (CRPD) into its work.”
The Assembly specifically requested support for member States “in their development, in co-operation with organisations of persons with disabilities, of adequately funded, human-rights compliant strategies for deinstitutionalisation”. The parliamentarians stressed this should be done with clear time frames and benchmarks with a view to a genuine transition to independent living for persons with disabilities. And that this should be in accordance with the UN Convention on the Rights of Persons with Disabilities, Article 19 on living independently and being included in the community.
The Assembly secondly recommended the Committee of Ministers to “prioritise support to member States to immediately start transitioning to the abolition of coercive practices in mental health settings.” And the parliamentarians further stressed that in dealing with children, who has been placed in mental health settings, one has to ensure that the transmission is child-centred and human-rights compliant.
The Assembly as a final point recommended that in line with the unanimously adopted Assembly Recommendation 2158 (2019), Ending coercion in mental health: the need for a human rights-based approach that the Council of Europe and its member states “refrain from endorsing or adopting draft legal texts which would make successful and meaningful deinstitutionalisation, as well as the abolition of coercive practices in mental health settings more difficult, and which go against the spirit and the letter of the CRPD.”
With this final point the Assembly pointed to the controversial drafted possible new legal instrument regulating the protection of persons during the use of coercive measures in psychiatry. This is a text which the Council of Europe’s Committee on Bioethics has drafted in extension of the Council of Europe Convention on Human Rights and Biomedicine. The convention’s article 7, which is the main relevant text in question as well as its reference text, the European Convention on Human Rights article 5 (1)(e), contain viewpoints based on outdated discriminatory policies from the first part of the 1900s.
Prevention versus ban
The drafted possible new legal instrument has been severely criticized as despite its stated seemingly important intend of protecting victims of coercive brutalities in psychiatry potentially amounting to torture it in effect perpetuate a Eugenics ghost in Europe. The viewpoint of regulating and preventing as much as possible such harmful practices is in stark opposition to the requirements of modern human rights, that simply ban them.
The Council of Europe’s Committee of Ministers following the receipt of the Assembly Recommendation communicated it to its Steering Committee for Human Rights in the fields of Biomedicine and Health (CDBIO), for information and possible comments by 17 June 2022. It is noted that this is the very committee, though with a new name, that had drafted the controversial possible new legal instrument regulating the protection of persons during the use of coercive measures in psychiatry.
The Committee of Ministers also sent the Recommendation to the Steering Committee for the Rights of the Child (CDENF) and the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) for comments. The CPT had earlier expressed a support of the need to protect persons subjected to coercive measures in psychiatry, as clearly these measures may be degrading and inhumane. It is noted that the CPT, like other bodies within the Council of Europe has been bound by its own conventions including the outdated text of the European Convention on Human Rights article 5.
The Committee of Ministers based on the possible comments from the three committees will then prepare its stand and a reply “at an early date”. It is to be seen if the Committee of Ministers will go beyond the outdated texts of their own conventions to actually implement modern human rights in all of Europe. Only the Committee of Ministers has the full authority to set the direction for the Council of Europe.
The Committee of Ministers in addition to reviewing the Assembly’s Recommendation also took note of the Assembly’s Resolution, that address Council of Europe member States.
The Assembly is recommending the European states – in line with their obligations under international law, and inspired by the work of the United Nations Committee on the Rights of Persons with Disabilities – to implement human-rights compliant strategies for deinstitutionalisation. The resolution also calls on national parliaments to take the necessary steps to progressively repeal legislation authorising institutionalisation of persons with disabilities, as well as mental health legislation allowing for treatment without consent and detention based on impairment, with a view to ending coercion in mental health.