The protocol was elaborated by the intergovernmental Committee on Bioethics (DH-BIO Since 1 January 2022, the Steering Committee for Human Rights in the fields of Biomedicine and Health (CDBIO) has replaced the Committee on Bioethics (DH-BIO).) which has entrusted a drafting group with the task of elaborating a preliminary draft Protocol. For the purposes of the elaboration of this preliminary draft, a hearing of INGOs representing the different sectors concerned (including patients and their families, physicians and other health professionals, associations specialised in the defence of human rights and in the defence of people with mental disorders) was organised on 11 March 2014.
In 2015 (22 June – 15 November), the DH-BIO decided to make available for consultation a draft Protocol as a working document (DH BIO/INF (2015)7). The purpose of this consultation was to elicit comments from individuals and bodies/institutions representing different stakeholders that are concerned. The comments received during the public consultation (DH-BIO/INF (2015)20) would be taken into consideration when finalising the Additional Protocol.
On 22 April 2016 the Parliamentary Assembly (PACE) of the Council of Europe adopted Recommendation 2091 (2016)1 “The case against a Council of Europe legal instrument on involuntary measures in psychiatry” questioning, in particular, the compatibility of the working document with certain provisions of the UN Convention on the Rights of Persons with Disabilities (CRPD) and calling for a direct involvement of disability rights organisations in case of a continuation of the drafting process.
On 9 November 2016 the Committee of Ministers, having considered comments from the Steering Committee for Human Rights (CDDH), the DH-BIO and the Ad-hoc Committee of Experts on the Rights of Persons with Disabilities (CAHDPH), adopted its reply (CM/AS(2016)Rec2091-final), considering, in particular, that the Additional Protocol would “contribute to prevention of abuses and encourage the progressive transition to a more uniform application of voluntary measures in psychiatry by the member States, in accordance with the spirit of the United Nations Convention on the Rights of Persons with Disabilities.” The Committee of Ministers also encouraged the DH-BIO to directly involve disability rights organisations to participate in the work still to be undertaken.
On that basis, the DH-BIO, during its 10th plenary session (Strasbourg, 5 – 8 December 2016) resumed the work on the Additional Protocol in the light of the comments received during the public consultation. The DH-BIO also agreed, further to the already existing participation of the Conference of INGO’s, to also involve directly disability rights organisations, inviting them to participate as observers in the relevant sessions of its meetings.
Following further revision, in particular in the light of the comments received during the public consultation, the DH-BIO, during its 13th plenary session (Strasbourg, 23 – 25 May 2018), decided to send the draft Additional Protocol for opinion to the to the following Council of Europe bodies/Committees, accompanied by its draft Explanatory Report: Steering Committee on Human Rights (CDDH), the European Committee for the Prevention of Torture (CPT), the Parliamentary Assembly, the Commissioner for Human Rights and to the Conference of INGOs. It also decided to send the draft text to the European Committee on Crime Problems (CDPC), with a specific question regarding the applicability to persons subjected to an involuntary measure, to address a mental health condition while serving a prison sentence or in detention, but without any link between the measure and a criminal offence.