People experiencing mental health problems are a particularly vulnerable demographic and the protection of their rights has been a concern for the Council of Europe for decades. 

Article 5 of the ECHR provides as one of the exceptions to the right of liberty and security of person, “the lawful detention … of persons of unsound mind”. The first judgment of the ECtHR on this topic dates back to 1979, when it held that the privation of liberty on grounds of mental ill health can only be justified if there is objective expert medical evidence that the person is so ill that the measure is needed to protect him or her or to protect others, and that the existence of this evidence must continue throughout the detention. 
Further judgments followed which have provided detailed guidance and strict criteria for involuntary placement and treatment, as well as the procedural guarantees that must be respected in relation to such measures. This is all set out in the report on the relevant case law, which was prepared by the ECtHR research division in 2022.

Generally, the Convention on Human Rights and Biomedicine (CETS 164, Oviedo Convention) aims at protecting the dignity and identity of all human beings and guarantee everyone, without discrimination, respect for their integrity and other rights and fundamental freedoms with regard to the application of biology and medicine.

The Committee of Ministers has made a number of relevant recommendations, including the 2004 recommendation “concerning the protection of the human rights and dignity of persons with mental disorder” which promoted the “principle of least restriction”, i.e. that “persons with mental disorder should have the right to be cared for in the least restrictive environment available, and with the least restrictive or intrusive treatment available, taking into account their health needs and the need to protect the safety of others”.

The CPT routinely visits institutions across member states where psychiatric patients are deprived of their liberty and makes reports and recommendations. 

Since 2012, the CDBIO has been working on the development of additional legal human rights instruments in the field of mental health.

When the CDBIO and subsequently the CM looked at the implementation of the Recommendation No. 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, it was found that many member states had lacunae in their legislation concerning the involuntary placement and treatment of persons in mental healthcare which meant that the “principle of least restriction” was not being applied in practice. Meanwhile, also, the ECtHR was continuing to find violations concerning involuntary measures in a number of States, and the CPT was reporting incompatible practices in an even greater number of MS.

In 2012, the CM therefore considered that it would be helpful to elaborate a legally binding instrument, in the form of an additional protocol to the Oviedo Convention. The draft Additional Protocol codifies the Council of Europe’s standards, in particular the principles set out by the Court in its case law, so that, as regards mental health care, (1) involuntary measures should always be the last resort, to be used only when strictly necessary to advert significant risk of serious harm to the patient or others, and should always take place in an appropriate environment and serve a therapeutic purpose; and (2) domestic law should include effective procedures for appeals, representation and oversight to ensure that this principle is observed in practice, including in emergencies. It prohibits, inter alia, any involuntary treatment with irreversible effects. 

Read more about the Draft additional protocol

In 2024, the CDBIO also approved a draft Recommendation on respect for autonomy in mental healthcare inspired by existing good practices, inter alia those presented in a Compendium report of good practices to promote Voluntary Measures in Mental Health Services published in 2021. Its aim, in line with the general rule stated in the draft Additional Protocol, is “to ensure respect for autonomy of persons receiving mental healthcare and to prevent the use of coercion in the provision of such a care.”
It provides detailed guidance on the way policies and practices should be designed (and regularly reviewed) with the aim of ensuring respect for autonomy of the persons receiving mental healthcare, referring for instance to the involvement of persons with lived experience in their design and to the need to work on education and training, promoting public understanding and preventing stigma. 

Cours HELP sur la santé mentale et les droits humains

The course, developed in 2024, aims to increase the knowledge of legal and health professionals and other relevant stakeholders on applicable human rights standards relevant for persons with mental health issues. In addition to the focus on Council of Europe instruments, particularly the European Convention on Human Rights and the case law of the European Court of Human Rights, the course also examines relevant international standards and documents developed under the auspices of the United Nations (UN) agencies and by the European Union (EU).

Compendium report : Good practices to promote Voluntary Measures in Mental Health Services

The report compiles practices that either directly aim to reduce, prevent, or even eliminate coercive practices in mental health settings, or will indirectly result in similar outcomes by advancing the general aim to promote voluntary mental health care and support.
The examples of practices were submitted by delegations of the Member States of the Council of Europe (COE) and by civil society stakeholders.