Bundesministerium für Gesundheit
Frau Dr. Brockmann
Am Probsthof 78a
Bundesministerium der Justiz
Frau Kerstin Lubenow
Referat III B 2
Re: European guidelines on the protection of people suffering from mental disorder
Dear Dr. Brockmann,
as the principal German delegate at the Council of Europe Steering Committee on Bioethics and a member of the Bureau you have received a copy of CDBI-PH (2002) 4 of 26 November 2002, Preliminary Draft Recommendation to ensure the protection of the human rights and dignity of people suffering from mental disorder, particularly of those admitted as involuntary patients to a psychiatric institution. The CDBI-PH (2002) 4 is the final proposal of the CDBI's Working Party on Psychiatry and Human Rights for new European guidelines on the protection of people suffering from mental disorder. The CDBI-PH (2002) 4 has been submitted to the CDBI for final approval. A thorough review of this proposal has convinced us that the guidelines in the CDBI-PH (2002) 4 are incomplete and, even worse, are depriving the mentally disordered of human rights as derived from natural law, such as the right to act on one's own choices. Such rights must not be taken away. They are the foundation on which all legitimate law is built. In several instances the guidelines unnecessarily revoke the fundamental rights of persons who suffer from a "mental disorder", a group that is defined much more widely than those with merely an "unsound mind". (According to the European Convention on Human Rights, Article 5 (1)(e),
the possibility to restrict the human rights of the mentally disordered in exceptional circumstances only apply to persons of "unsound mind"). The revoking of these so-called first generation rights, or basic civil liberties, including the right to liberty, security, equality before the courts, and family, is done in an attempt to grant some second-generation rights, like that to psychiatric treatment, due to an assumed inability of the patient to decide on the quality of life improvement by a proposed psychiatric treatment. The guidelines however do not consider that a positive effect of the proposed treatment is not guaranteed, but on the contrary and by substantial evidence such treatments have proven to be damaging in many cases and the rates of improvement or cures are below any acceptable standard.
According to the proposed guidelines, personal liberties can be suspended, based on a single physician's subjective opinion only, an opinion which quite commonly cannot be founded on scientifically valid proofs or judicially valid evidence. Such rights are then "taken over" by the one deciding to suspend the person's fundamental rights or they are transferred to psychiatric colleagues, who, by these guidelines, are given a monopoly to decide about many aspects of the life of the person concerned and to restrict the persons possibility to act and take care of his own affairs. This even more problematic as the basic tenets of the guidelines in CDBI-PH (2002) 4 have been ruled against in cases filed both with the European Commission on Human Rights and the European Court on Human Rights.
One conclusion of the Commissioner for Human Rights, at his 7 February 2003 seminar on The Protection and Promotion of the Human Rights of Persons With Mental Disabilities, was CommDH(2003)1, point 1: "The entitlement to the enjoyment of human rights admits no hierarchy of holders. Persons with disabilities, whether physical or mental, enjoy, in virtue of the respect due to their human dignity and integrity, the same human rights, in equal measure, as all other persons."
And point 13 of the same conclusion says: "Significant advances will not be made, however, without the necessary political will and commitment of legislators to realistic policies. The constructive involvement of all actors, including persons with mental disabilities themselves, their families, politicians, the legal and medical professions and NGOs is vital. These actors are partners, not antagonists, and they all have a contribution to make." Thus we trust that the following comments in the form of proposed amendments (TAB 1), an explanatory memorandum (TAB 2), and two analyses (TAB 3 and 4) will be of help in your own review of the quite complex guidelines proposed in CDBI-PH (2002) 4. Furthermore, the analyses may assist in assessing the changes made, compared to the Preliminary Draft Recommendation's earlier versions. Our amendments and analyses may appear extensive, but a thorough treatment was required if one wanted to keep human rights violations abay. We have tried to formulate all statements in a very straightforward manner.
It must be remembered that the CDBI-PH (2002) 4 contains the proposed revision of the existing Council of Europe guidelines to ensure the protection of the human rights and dignity of people suffering from mental disorder, particularly of those admitted involuntarly to a psychiatric institution. The existing guidelines published in the Committee of Ministers' Recommendation (83) 2 were to be amended in view of the Parliamentary Assembly Recommendation 1235 (1994) on psychiatry and human rights.
The Committee of Ministers in the Intergovernmental Programme of Activities for 1998 in section I.13c Psychiatry and Human Rights stated: "The Working Group on Psychiatry and Human Rights (CDBI-PH) has been set up in order to review Recommendation No. R(83)2 of the Committee of Ministers concerning the Legal Protection of Persons Suffering from Mental Disorders Placed as Involuntary Patients, in the light of Recommendation 1235 (1994) of the Parliamentary Assembly on Psychiatry and Human Rights."
Parliamentary Assembly Rec 1235 (1994) on psychiatry and human rights The Parliamentary Assembly Recommendation 1235 (1994) on psychiatry and human rights, which lines out the rules on which the revision of the existing guidelines is to be based, was formulated in the spirit of the 50-year-tradition of human rights of the Council of Europe. A work which has resulted in the widespread recognition of human rights and the protection of these rights of citizens from arbitrary actions by authoritative state agencies and their representatives or others.The Parliamentary Assembly rapporteur on psychiatry and human rights states in the introduction to his report and its recommendations:
"This report on psychiatry and human rights is not a report on psychiatry: it is a report on human rights. To be more precise: it is a report on the guidelines, the limits and impact of human rights, the European Convention on Human Rights and its jurisprudence, the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment and the findings and conclusions of the European Committee as mentioned in that convention."He further stated that "This report is in a way a consequence of the Assembly's resolution of 18 August 1988, on ending violation of the European Convention on Human Rights by psychiatry"; and added that the questionnaires sent to the delegations of member States give an impression of the present situation in Council of Europe member States and one can see "that in many respects the human rights of this particular vulnerable population are not sufficiently guaranteed."
The Parliamentary Assembly Resolution of 18 August 1988 on ending violation of the European Convention on Human Rights by psychiatry had reaffirmed the principles laid down in Articles 4, 5 and 13 of the European Convention on Human Rights, mainly because of an increasing number of complaints by psychiatric patients and suicide rates within psychiatric institutions, and also due to the warning stated in paragraph 250 of the report of 23 August 1983 of the United Nations Sub-Committee on Human Rights on prevention of discrimination and the protection of minorities. The UN report was quoted as follows: "If the mental health care system as a whole is characterised by neglect and confusion, if the financing is inadequate and the administration weak, if psychiatrists and other physicians do not respect the codes of medical ethics, then even the most modern and perfectly adapted legislative and administrative measures for the protection of the fundamental freedoms, human and legal rights of the patient will be irrelevant."
The Committee of Ministers agreed that the rules in the Parliamentary Assembly Recommendation 1235 (1994) on psychiatry and human rights could contribute to harmonize legal measures at a European level, with the intention to guarantee that the human rights and dignity of persons suffering from mental disorder and admitted as involuntary patients are respected.Analysis of the Preliminary Draft RecommendationAn analysis of the proposed new European guidelines stated in CDBI-PH (2002) 4, compared to the rules of Parliamentary Assembly Recommendation 1235 (1994), shows that more than 70 percent of the recommended rules of the Parliamentary Assembly have been altered, ignored or rejected. Many of the safeguards against coercive and intrusive treatment and arbitrary and unscientific diagnoses by individual psychiatrists have been deleted and, in some instances, have been formulated contrary to the original intention.It appears that the Working Party has not forwarded the human rights and political directions of the Parliamentary Assembly but has,instead, formulated guidelines that not only will give psychiatrists a monopoly over mental health treatment (factually disallowing citizens the possibly to undergo non- psychiatric treatment methods including non-drug based practices if a psychiatrist or physician is against it), but will also allow psychiatrists to conduct any type of treatment, as long as certain procedures are followed. This includes electric shock and the provenly destructive and irreversible psychosurgery operations such as lobotomy - even against the mentally disordered persons' expressed will not to undergo such invasive "treatments."Any intervention, including enforced sterilization, castration and abortion, and treatments ranging from behaviour control drugs to electric shock and psychosurgery, is authorized under the very general heading of "Special treatments." The omission of the names of specific treatments in the recommendation or subsequent law opens the door to an arbitrary use of any treatment and makes Europe prone to fall back into the dark ages, concerning treatment.Under these proposed guidelines, coerced treatments - without any evidence that such practices work - can be carried out anywhere on citizens labelled as "mentally disordered", no matter whether the individual is institutionalized or in the community. The treatments can be carried out on the decision of an "authorized person", which most likely will be a psychiatrist.
The Preliminary Draft Recommendation pretends to formulate guidelines in accordance with the Parliamentary Assembly recommendation 1235 (1994) but, overall, only implements those points that will strenghten the rights of psychiatrists to carry out treatment of any kind. In other words, the interests of psychiatrists have priority over patient care, thereby undermining the patients' human rights.In summary, the proposed guidelines on psychiatric treatment within the CDBI-PH (2002) 4 are not based on the Recommendation 1235 (1994) nor on the European Convention on Human Rights and, in fact, bluntly undermine the human rights views expressed in that convention. Other Concerns
For your review of the guidelines proposed in CDBI-PH (2002) 4 and the assessment of their considerable divergence from Parliamentary Assembly Recommendation 1235 (1994), ignoring the lack of effective outcomes from current psychiatric treatments, you may find it worthwhile to consider and in the revision include necessary safeguards and other guarantees, such as:The Universal Declaration of Human Rights, Article 3: Everyone has the right to life, liberty and security of person.
The International Covenant on Civil and Political Rights, article 9, section 1: Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention....
The European Convention on Human Rights:
Article 3 - Prohibition of torture. No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
Article 5 - Right to liberty and security. 1 Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
Article 8 - Right to respect for private and family life.
1 Everyone has the right to respect for his private and family life, his home and his correspondence.
2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Article 13 - Right to an effective remedy. Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.
Article 17 - Prohibition of abuse of rights Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.
Article 18 - Limitation on use of restrictions on rights. The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.
Article 53 - Safeguard for existing human rights Nothing in this Convention shall be construed as limiting or derogating from any of the human rights and fundamental freedoms which may be ensured under the laws of any High Contracting Party or under any other agreement to which it is a Party.Involuntary commitment and treatment laws have been formulated in violation of the most basic fundamentals of human rights, and are furthermore frequently mis-used in many member States of the Council of Europe, thereby violating the most basic of individual human rights and civil liberties. It is the duty of decision-makers to ensure that this situation is not further exacerbated - a very likely scenario if the guidelines proposed in CDBI-PH (2002) 4 are adopted in their present form and intention.The proposed guidelines as they appear in the CDBI-PH (2002) 4 are in violation of the Committee of Ministers' direction concerning the revision of the existing European Guidelines on the protection of people suffering from mental disorder, as stated in its Intergovernmental Programme of Activities for 1998. If the CDBI intends to authorize the proposed guidelines as they are - because the existing guidelines were to be revised by considering both the Parliamentary Assembly Recommendation 1235 (1994) and current psychiatric practices, which the Working Party has done - then the final recommendations still must not endanger the individual's fundamental rights and must include a number of actual safeguards and other guarantees for actual protection of mentally disordered persons.The European Convention on human rights and other international human rights instruments provide the rights of security of person and decision-making in own affairs. Such rights include the right to freedom from "cruel, inhuman or degrading treatment" and as such the right to free choice of treatment and its form. The restrictions concerning the liberties of persons of "unsound mind" do not infer that "involuntary treatment" may be imposed on any mentally disordered person.
In this context of human rights it is noteworthy that a right to psychiatric treatment can't be derived as a right from the European Human Rights Convention article 5 (1) (e), as clarified by decisions of the European Commission on Human Rights and rulings of the European Human Rights Court, as in the cases Winterwerp and Ashingdane (Winterwerp v. The Netherlands, Application 6301/71, Judgement of the Court, Ser. A No. 33 - 1979; Ashingdane v. United Kingdom, Judgement of May 26, 1985, Ser. A No. 93).
Finally, we want to warn against using criteria as unspecific as those formulated in CDBI-PH (2002) 4 and against the proposed possibility to use coercive force and treatments on "mentally disordered" persons anywhere in society. We also must warn against the re-introduction of coercive sterilization and the possibility to force a mentally disordered woman to abort her child, and to enforce such irreversible brain damaging treatments as lobotomy and other psychosurgeries. The possibility to use such measures against mentally disordered persons will inevitably result in demands to use them in certain cases and may likely result in arbitrary use. The history and the psychiatric tradition that exist in several European member States, including Germany, have to be kept in mind when considering possibilities of future abuse. Mentally disordered citizens do have the same human rights as all other citizens. If the Council of Europe passes a legal instrument that potentially undermines these rights for a large segment of the population, this could initiate the creation of truly second class citizens.
In conclusion, the guidelines in CDBI-PH (2002) 4 do not uphold but rather demolish the human rights standards which the Council of Europe is renown for. We see some improvements compared to the Draft Recommendation of 28 September 2001, but these are grossly insufficent.The result of the reflections of the Working Party on Psychiatryand Human Rights must be a legal instrument that will uphold humanrights and provide strict limitations on restricting such rightsin very exceptional cases only, such as severe psychosis and caseswhere it is evident beyond reasonable doubt that the person mayharm himself or others. The document should not center around howpsychiatric treatments can be administered to individuals legally,against their express will, in those exceptional cases wherepeople are of unsound minds and where it has been decided thattheir human rights are to be restricted in part during a limitedtime. A court, not a treating psychiatrist, should decide about aperson's ability to consent to or reject admission to apsychiatric institution. Similarly, an institutionalized personmust be able to challenge the lawfulness of any decision ofcoercive treatment.
As one measure to counter the widespread abuse and injustice inthe mental health systems in Europe and abroad, psychiatric "living wills" have come into existence, in which persons of soundmind sign a statement declining specific or any psychiatricintervention or treatment in the future. Such documents must berecognized in any reform of involuntary detainment and coercivetreatment laws as valid and legal documents, which are not to beundermined or superceded by future laws. A psychiatric "livingwill" or other declarations objecting to any stated form of psychiatric treatment when signed by persons of sound minds are asvalid as any other legal document and must not be ruled void justbecause a psychiatrist may consider or diagnose the person as "mentally disordered" at a later point of time.The enclosed amendments and analyses provide further informationon the numerous concerns about the guidelines in CDBI-PH (2002) 4. We are confident that you will study these and find them usefulwhen considering any formal adoption of policy or recommendationsregarding the involuntary detainment of individuals said to be suffering from a mental disorder.