Mental health policy and practice across Europe: an overview

326 Mental health policy and practice
Consent to treatment and Council of Europe
human right instruments
Bioethics Convention
Issues relating to consent to treatment are addressed by the Convention for the
Protection of Human Rights and Dignity of the Human Being and Medicine:
Convention on Human Rights and Biomedicine 1997 (‘the Bioethics Convention’).
It states, as a ‘general rule’ that a health intervention may only be carried
out after the person concerned has given free and informed consent to it
(although the personal representative of an individual who lacks capacity to
make treatment decisions may consent to treatment on that person’s behalf).
However, Article 7 provides that individuals may be given treatment without
their consent if they have a mental disorder of a serious nature, the intervention
is aimed at treating the mental disorder and without treatment serious harm is
likely to result in the person’s health. Furthermore, Article 26 allows individuals
to be treated without their consent if, for example, this was considered necessary
to ‘protect other people’s rights and freedoms’. Paragraph 151 of the
Explanatory Report to the Bioethics Convention explains: ‘A person who may,
due to his or her mental disorder, be a possible source of serious harm to others
may, according to the law, be subjected to a measure of confinement or treatment
without his or her consent’.
Although the Bioethics Convention states that the circumstances in which
compulsory treatment is given for a mental disorder must be subject to safeguards,
none are specified. It is also worrying that there is no requirement for
safeguards to be provided in relation to compulsory treatment on the basis of
protecting others under Article 26. Any such intervention would have to be
justified under Article 8 of the ECHR (the right to private and family life). This is
discussed below under the heading ‘The ECHR and compulsory treatment for
mental disorder’.
CPT Standards and REC(2004)10
The CPT states that all individuals in psychiatric institutions should have the
opportunity to refuse treatment and that ‘any derogation from this fundamental
principle should be based upon law and only relate to clearly and strictly
defined exceptional circumstances’; but provides no further explanation. However,
REC(2004)10 offers more detailed guidance on the circumstances in which
treatment without consent will be justified. Article 18 states that a person
should be subject to involuntary treatment only if the individual has a mental
disorder which ‘represents a significant risk of serious harm to his or her health
or to other persons’, less intrusive means of providing appropriate care are not
available and ‘the opinion of the person concerned has been taken into consideration’.
Article 20 requires that the decision to provide treatment without
consent is taken by a court or ‘competent body’, save that if the person is
detained, the decision may be taken by a doctor ‘having the requisite competence
and experience, after examination of the person concerned and taking
into account his or her opinion’. The recommendations set out various procedural
requirements such as providing the person with information (verbally
and in writing) about their rights and remedies open to them (Article 22) and