[1] The Explanatory Memorandum (hereafter EM) will need to make clear that the Recommendation covers respect for autonomy with regard to interventions in the context of mental healthcare. In daily life, there are normally limits to autonomy in terms of freedom to make choices (eg how much rent one can afford to pay) and in a facility there may be limitations on autonomy on matters such as where it is possible to smoke or what food is available on the menu.

[2] Key principles from the CRPD could be highlighted in the EM.

[3] The EM should explain that the Council of Europe has a suite of measures relevant to the protection of persons with mental health problems. Some, such as Rec(2004)10, are of broad scope. Wider principles set out in that Recommendation, for example concerning the exercise of civil and political rights, are also relevant to respect for autonomy. Other detailed provisions on, for example, health service provision and professional standards, are not duplicated in these guidelines but are relevant to achieving high quality mental healthcare.

[4] The EM will explain that all human beings are morally equal possessors of human dignity, irrespective of the extent to which a person is capable of making autonomous choices.

[5] The EM should explain that this includes both financial and human resources.

[6] The EM will explain that there is no single definition of the term “autonomy”. In this Recommendation, the term is used in relation to decision-making. Respect for autonomy implies ensuring a person participates to the fullest extent possible in decision-making regarding their treatment and care, irrespective of the person’s legal capacity. It is increasingly recognized that people do not take decisions in isolation. Thus, autonomy has a relational component, when a person reaches a decision in consultation with others. In the mental health context, this could include health professionals and others involved in the person’s care, and close members of his or her family and social network.

[7] The EM will explain that the ultimate goal is that coercion is never used in mental healthcare. Research and clinical experience (e.g.as shown in the Compendium of good practices referred to in the Preamble) has demonstrated how the use of coercion can be considerably reduced in comparison to historic practices. Therefore, this Recommendation aims to ensure that the use of coercion is reduced to a minimum and eliminated wherever possible.

[8] The EM should explain that this recommendation applies to minors to the extent appropriate to their age and degree of maturity.

[9] The EM should explain that this includes mental health assessments.

[10] The EM will explain that this excludes care by family members or the social network and focuses on professional mental healthcare, whether this is delivered by a mental healthcare service or by a related service.

[11] Wording based on that of Article 3.1 of the Draft Additional Protocol. The EM could explain that this means that the agreement of the person concerned should be systematically sought to any healthcare provided to that person, with the aim that measures should not be taken that are against the will of the person concerned.

[12] Exceptions are dealt with in other instruments e.g. ECHR, Oviedo Convention.

[13]Effective community-based services can help people to obtain assistance with mental health problems at an early stage, and potentially prevent a problem becoming more severe and prevent the need for admission to inpatient facilities. Article 10i of Rec(2004)10 requires that mental healthcare should include “a range of services of appropriate quality to meet the mental health needs of persons with mental disorder, taking into account the differing needs of different groups of such persons”.

[14] The earlier someone presents to a service for treatment, the less likely it is that an acute situation may occur. Therefore, action may be needed to increase the awareness of the public about recognition and treatment of mental health problems in order to encourage people to seek care when unwell a well as ensuring that if a person does seek care, they have rapid access to mental healthcare of appropriate quality.

[15] In respect of an individual, autonomy either is or is not respected. In terms of a service, maximising autonomy refers to maximising the number of individuals cared for by that service who have their autonomy respected. The EM should make clear that in order to achieve this goal, commitment is needed at all levels of responsibility for mental healthcare and related services, from national government to those responsible for running a local service. Promotion of programmes and projects designed to increase respect for autonomy, including guidelines, initiatives, and other measures (for example, those illustrated in the Compendium Report of good practices referred to in the Preamble) can contribute to the achievement of the goal.

[16] So, for example, national governments are responsible for setting out the goal as a public policy direction, and for ensuring that policy is widely disseminated to competent authorities and other stakeholders. Thos responsible for a particular local unit are responsible for ensuring the unit has policies in place that reflect the goal, and those responsible for a clinical team are responsible or ensuring that the actions of individual team members reflect the goal.

[17] This would cover individual past or present users of mental healthcare, whether they are members of representative organizations or not.

[18] The EM could mention the importance of ensuring a wide range of sectors and stakeholders, including representative organizations, are involved in developing policy and practice in addition to persons with lived experience.

[19] The importance of informing patients of their rights, and ensuring they had assistance to exercise those rights, was highlighted in Article 6 of Rec(2004)10. Enabling people to express their autonomy is an example of that principle. As previously noted, autonomy has a relational component, in which people take decisions in cooperation with others. People’s need for assistance varies: some people will wish to take decisions alone, in consultation with the professionals involved in their care and others may wish to have support from family, friends or others in their social network. Others may not wish to involve people with whom they have a personal relationship in such discussions, or not have anyone hey could involve, but would benefit from help to express their preferences or to take the right decision for them. It is important that such people be able to access assistance, independent of the professionals involved in their care. There are many ways in which this could be done, such as peer support networks (so the person can benefit from consulting others with lived experience), personal advocates, or user support services and it may be useful to be able to offer a range of options.

[20] The EM could include concrete examples of anticipatory measures in mental healthcare such as crisis plans and advance directives. These can be incorporated into a person’s recovery plan.

[21] The EM would explain these include services connected to providing appropriate housing, assistance with employment and social security benefits, and activities promoting social engagement of service users in the community. It also includes front-line emergency services, such as fire brigades and ambulance services, who may have contact with persons with mental health problems.

[22] The EM can explain that the term “family” is used in a broad sense and is not confined to blood relationships eg it includes partners. The views of the person concerned should always be sought regarding who should be involved in his or her care. It will usually not be possible to avoid involving the family of a child whatever that child’s view (and the CRPD provides qualifications regarding the rights of children).

[23] The EM can explain that such involvement may contribute to help finding appropriate solutions for the care of the persons concerned. It can also emphasise the importance of support being available for members of a family or social network who are involved in caring for a person with mental health problems.

[24] The wording is based on Rec (2004)10, Article 37.1.v

[25] The EM can explain the importance of personal testimonies being available to the relevant bodies, subject to the rights of the person concerned.

[26] Chapter VII of Rec (2004)10

[27] The EM could make a reference to Article 28 of the Oviedo Convention

[28] The EM can note the value of personal testimony from persons with lived experience in this context.

[29] i.e. not just health and social care professionals, but administrative and other staff too.

[30] Such as education and public policy as well as health and social care. The WHO QualityRights initiative, referred to in the Preamble, provides a range of e-courses in various languages intended for professionals providing services at all levels;

[31] The EM could give examples of emergency workers such as staff of fire brigades, hospital emergency services, online or telephone emergency triage services and of crisis centres who may have first contact with a person with mental health problems both during a period of mental health crisis and at other times. Such training may cover techniques to de-escalate situations and means of avoiding any use of coercion.

[32] The EM could refer to programmes based on good practice standards e.g. as highlighted by the Compendium or WHO and can explain that, for example more understanding is needed of demographic variation in the use of coercion and of how to translate successful services into areas with different characteristics. A cross-reference can be made to the Preamble to highlight the need for appropriate resourcing.

[33] The EM can make cross-references to the good practices in the Compendium (highlighted in the Preamble), and of information available from complaints (Article 12) and other relevant reports.

[34] The EM will cross-reference the preambular call for States to show leadership and Article 5 Guiding principles. The system for monitoring compliance could be the same system charged with quality assurance and monitoring in Chapter VII of Rec(2004)10. As the EM to that Recommendation made clear, states have different systems for undertaking these functions. A particular system is not prescribed, but the responsibility for monitoring the standards set out by this Recommendation should be explicit. The WHO QualityRights Toolkit, based on evaluation of compliance with core standards of the UN Convention on the Rights of Persons with Disabilities, is an example of an international tool that could contribute to monitoring.