APPENDIX 1
GLOSSARY
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 source whatsoever.
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.
APPENDIX 2
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.
Rules
Article 1
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.
Article 2
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.
Article 3
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.
Article 4
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.
Article 5
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.
Article 6
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.
Article 7
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.
Article 8
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 person.
3. The termination of the placement does not necessarily imply the end of treatment which may continue on a voluntary basis.
Article 9
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.
Article 10
In all circumstances, the patient's dignity should be respected and adequate measures to protect his health taken.
Article 11
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.
EXPLANATORY MEMORANDUM
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
. 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 Rights).
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
Article 1
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.
Article 2
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 medical science.
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.
Article 3
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 other persons.
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.
Article 4
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 speedy.
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 competent authority.
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.
Article 5
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 authority.
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 them.
Article 6
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 individual petition.
Article 7
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.
Article 8
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 possible.
Article 9
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).
Article 10
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 effective treatment.
Article 11
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.
APPENDIX 3
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 ***ual 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 involuntary patients.
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 treatment;
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.
ii. Treatment:
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 patient;
d. there must be adequate nursing staff appropriately trained in the care of such patients;
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 ***ual 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 institution;
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 6.b;
- 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, and 6.b.
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 Eisma).
5. Text adopted by the Assembly on 12 April 1994 (10th Sitting).
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