ADDITIONAL PROTOCOL TO THE OVIEDO CONVENTION: A DISOBLIGING DEFIANCE OF HUMAN RIGHTS?


This article has been authored by Abhiraam Shukla who is a second-year law student studying at National Law Institute University, Bhopal.


Introduction


Of late, the Council of Europe has been pursuing a legal instrument titled “Draft Additional Protocol concerning the protection of human rights and dignity of persons with mental disorder with regard to involuntary placement and involuntary treatment” [hereinafter referred to as “Protocol”] which is perceived to jeopardize the rights of the disabled persons as guaranteed by the prominent international conventions such as United Nations Convention on the Rights of People with Disabilities and European Convention on Human Rights among others. The Protocol is an additional protocol to the Convention on Human Rights and Biomedicine which is better known as the Oviedo Convention. This Oviedo Convention is the individual legally binding statute in international law vis-à-vis human rights and biomedicine.


The Protocol indicates that European countries are primed to enact new legislations regarding vis-à-vis forced placement and treatment of persons with mental disabilities in spite of the existing human rights and liberties as stated in different conventions. In this piece, the author intends to analyze the existing human rights of people with disabilities and how this protocol will violate those legal safeguards as provided to them in the international legal framework.


Rights Of The Disabled In International Law


In the International Law, the leading statute on the protection of rights of the disabled is the Convention on Rights of People with Disabilities [hereinafter referred to as “CRPD”] which has been ratified by 46 out of 47 member states of the Council of Europe. CRPD guarantees disabled people, liberty, and freedom to choose their medical treatment.

Article 3 of the CRPD categorically states that the principles which govern the statute and its signatories include protection of individual autonomy and the intrinsic respect of the disabled persons including their freedom to make choices. Whereas Article 14 of the same affirms that it shall be ensured by the state parties that disabled people shall enjoy the right to liberty and security. It also expounds that they shall not be deprived of their freedom to choose by an unlawful or arbitrary manner.


Another remarkable covenant protecting human rights is the European Convention of Human Rights which also safeguards the rights to non-discrimination, liberty, security, and of bodily integrity [Article 5]


Now let us focus on the main convention on which this Protocol is designed to add upon- the Oviedo Convention. The Oviedo Convention, which was opened for signature on 4th April 1997 is the pioneer internationally binding covenant aimed to protect and safeguard rights and liberties of all people through an assemblage of obligations and proscriptions against abuse of scientific, medical and biological interventions. The Oviedo Convention has prescribed a set of rules and regulations related to medical treatment and research by considering a set of comprehensive and accurate prerequisites, especially for persons who cannot give their consent.


Article 1 of the Oviedo Convention instructs that parties are to protect the dignity and identity of all persons and without discrimination and respect their fundamental freedoms regarding the application of biomedicine. Article 5 of the Convention mandates that any treatment in the health field should be taken only after the persons has given a valid and complete consent to it.


Substance Of The Additional Protocol


The Protocol has several articles that are opposed by international legal agencies as well as member states. It prescribes provisions that shall be applied to involuntary treatment and involuntary placement of persons suffering from mental disorders [Article 2.1]. The criterion for deciding whether involuntary placement and involuntary treatment are to be used is enlisted in Article 10 and 11 respectively. These two articles state that such measures are to be taken only if a person’s mental health condition poses a serious damage to their health [Article 10.i.(a) & Article 11.i.(a)] or on the health of other people [Article 10.i.(b) & Article 11.i.(b)]. Such measures shall also be taken in case the placement/treatment is for therapeutic purposes [Article 10.ii and Article 11.ii] or if no voluntary measure is sufficient for averting the risk of harm constituted as enumerated in Article 10. i and Article 11.i [Article 10.iii and Article 11.iii].


Article 12 of the Protocol expounds on the procedure for taking decisions on involuntary placement/treatment. It states that involuntary placement/treatment of a person shall take place only based on examination by a competent physician following requisite medical standards [Article 12.1] and the decision to subject a person to an involuntary measure shall be taken by a court or any other competent authority [Article 12.2].


Legal Contentions Against The Additional Protocol


The main contention against the Protocol is that it would give legal authority to the forced treatment of mentally disabled persons- something which is expressly disapproved in the CRPD. Such treatment grossly violates the numerous rights of mentally disabled persons including virtues such as liberty, security and health, both physically and mentally as provided for by the CRPD.


Even though some parties to the Protocol try to rationalize the draft, it has been opposed by numerous international legal bodies and mandate holders of the UN.


UN Special Rapporteur has emphasized on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health as opposed to the involuntary placement of people who are suffering from intellectual disabilities as stated in the report A/HRC/398/36. Furthermore, excessive medicalization and prejudicial laws and regulations related to mental health often hinge on the premise that individuals with certain mental difficulties are at a high risk of harming themselves and others. This reasoning is controverted in the report A/HRC/41/34 by the same.


In its latest report A/HRC/44/48, the Rapporteur called the States to “undertake the legislative, policy and other measures required to fully implement a human rights-based approach to mental health with the inclusive participation of those with lived experience”

In March 2020, UN Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment recognized that “psychiatric intervention based on ‘medical necessity’ or the ‘best interests’ of the patient may well amount to torture” [A/HRC/43/49]

In addition to the reports stated above, UN Human Rights Council adopted the resolution A/HRC/43/L.19 on 20th March 2020 in which it acknowledges that persons, who are mentally and /or psychosocially challenged are subjected to multiple human rights violations including such treatment which fails to respect their rights, wills, and liberties. It calls upon the States to abandon all practices which transgress the autonomy, wills, and preferences of the people and promote a paradigm shift in mental health, “through the promotion of community-, evidence- and human rights-based and people-centered services and supports that protect, promote and respect the enjoyment of the rights, autonomy, will and preferences of all persons


Views On Forced Treatment By Medical Practitioners


Not only the forced treatment and placement is unlawful under the International Law, but it is also questioned by the medical and scientific community. Some have concluded that any form of forced treatment is counterproductive to human rights-based mental health care. They argue that lack of evidence suggests “any evidence pertaining to the generalisability or sustainability of individual programs”. On the other hand, there is evidence that coercive practices such as seclusion and restraint harm the physical and mental health of the patients. At last, it is also evidently accurate that people who have been involuntarily treated have a shorter life expectancy and suffer from a poor state of health.


Conclusion


Thus, it is patent that the Protocol to Oviedo Convention is violative of the rights and safeguards awarded by the international legal statutes to the disabled community living in Europe. It creates a risk of conflict between the working of International Law in Europe and at the global level.


The Committee on Bioethics [DH-Bio] of the Council of Europe should withdraw the present Protocol and call upon the member states to ask for the withdrawal of the same. Furthermore, the Council of Europe should address the difficulties faced by the disabled community by moving away from coerced treatment and placement. It should inform the member states of the alternative measures to the forced treatment which are based on informed consent. Such measures are already being employed by numerous countries and can be used in the European Union too by facilitating the exchange of information between the nations.

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