INVOLUNTARY PLACEMENT AND INVOLUNTARY PLACEMENT AND TREATMENT OF PERSONS WITH TREATMENT OF PERSONS WITH

MENTAL HEALTH PROBLEMSMENTAL HEALTH PROBLEMS

Mario Oetheimer

Freedoms and Justice Department

Vienna, 4 November 2010

OutlineOutline

• What are the standards?

• What are our preliminary findings?

International and European Standards: International and European Standards: TreatiesTreaties

• Liberty and security of the person– Art. 14 CRPD– Art. 5 ECHR

• Freedom from torture and ill-treatment– Art. 15 CRPD– Art. 3 ECHR– European Convention for the Prevention of Torture

• Protection of persons not able to consent and persons who have a mental disorder– Arts. 6(3) and 7 Convention on Human Rights and Biomedicine

(Oviedo Convention)

European Soft Law StandardsEuropean Soft Law Standards

• Council of Europe Recommendation Rec(2004)10 concerning the protection of the human rights and dignity of persons with mental disorder– Art. 17 and 25

• Committee for the Prevention of Torture Standards (CPT Standards)

What are our preliminary findings?

Preliminary Analysis of EU Member Preliminary Analysis of EU Member StatesStates’’ Legislation Legislation

1) Criteria or conditions of person

2) Principle of least restriction

3) Requiring consent of the person concerned;

4) Availability of appeal and review procedures

1) Criteria or conditions of person1) Criteria or conditions of person

Great variety of practices among EU Member States: All require the presence of a mental health problem together with:

• significant risk of serious harm;• therapeutic purpose• significant risk of serious harm + therapeutic

purpose;

2) 2) Principle of Least RestrictionPrinciple of Least Restriction

• Involuntary placement should be possible only if no less restrictive means are available;

• This requirement is implemented by most EU Member States.

3) Consent of the Person 3) Consent of the Person ConcernedConcerned

• Involuntary placement is possible only if the opinion of the person concerned has been taken into consideration

• Among EU Member States, consent is often sought, but not always taken into account when deciding on involuntary placement.

4) Appeal and Review Procedures4) Appeal and Review Procedures

• Right to appeal against a decision;• Review of the lawfulness of the measure by a

Court at reasonable intervals;• Right to be heard in person or through a

personal advocate or representative.

Mixed performance among EU Member States.

SummarySummary

• International and European standards;

• Some preliminary findings related to involuntary placement.

FRA Future WorkFRA Future Work

• FRA report on involuntary placement and treatment in the first semester of 2011;

• Engage with participants on the main problems related to involuntary placement.