Strasbourg, 28 September 2022                                                                           CDBIO(2022)27

STEERING COMMITTEE FOR HUMAN RIGHTS

IN THE FIELDS OF BIOMEDICINE AND HEALTH (CDBIO)

Draft Recommendation promoting the use of voluntary measures in mental health care services – key principles

Proposal from the Bureau

Document prepared by Dr Elaine Gadd, Consultant

on the basis of the Compendium of good practices

to promote voluntary measures in mental health

1.         At their 1434^th meeting at Deputies’ level (11 May 2022), the Committee of Ministers instructed the CDBIO to complete a draft Recommendation promoting the use of voluntary measures in mental health care services by the end of 2024.

2.         This supports the emphasis in the Preamble to the Draft Additional Protocol to the Convention on human rights and biomedicine concerning the protection of human rights and dignity of persons with regard to involuntary placement and involuntary treatment within mental healthcare services (hereafter “Draft Additional Protocol”) of the primary importance of developing appropriate mental healthcare measures carried out with the consent of the person concerned and aiming to avoid resort to involuntary placement and involuntary treatment, which should only be a last resort.

3.         Following a stakeholder consultation meeting in 2019, in 2020 DH-BIO sought information from member states and others to inform the development of a compendium of examples of good practices to promote voluntary measures, and to reduce coercion, in mental health care and support. The resulting compendium, which was not exhaustive, was published in 2021[1].

4.         On the basis of that compendium, some key principles can be identified that could be used as the basis for the draft Recommendation. Some of those principles can be seen as developments of requirements set out in other legal instruments developed by CDBIO and its predecessor committees.

5.         Responsibilities for mental health care services exist at various levels. These range from the national Government level setting the context in terms of legislation and policy, to regional and local administrations responsible for a range of facilities and services, to local service providers. Promotion of voluntary measures, and reduction in use of coercive measures, is most likely to succeed if there is unambiguous commitment at all levels to the goal of promoting voluntary measures and reducing coercion (hereafter “the goal”).

6.         However, the compendium is clear that whilst such a commitment is central, it needs to be accompanied by accountability mechanisms, such as requirements for reports on progress,if it is to be effective.

7.         The commitment should be reinforced by national and local leadership to achieve the necessary cultural change to achieve the goal. The compendium concludes that both are necessary in order to create and maintain cultural change either within a system or in an individual service. Achieving lasting cultural change requires sustained focus, and monitoring and oversight of progress.

8.         Education and training[2] should be available to promote understanding of the importance of the goal as a matter of human rights, and of potential means to achieve the goal. The compendium recommends encouraging an open, learning culture for staff and highlights the value of personalised feedback (for example, concerning the use of involuntary measures by a particular team, in comparison with use by other comparable local teams).

9.         However, despite appropriate education and training, the goal will not be achieved unless the services are appropriately resourced. Availability of a range of services (such as home based care, crisis houses, and mobile support units in addition to institutional environments; services that are flexible and available 24/7; services that are rights and recovery-focused and trauma-aware) may make it easier to achieve the goal[3]. Within a mental health facility, consideration should be given to the physical and social environment to ensure a welcoming and relaxing experience for service users, which may decrease the need for coercive measures.

10.       The compendium acknowledges that services that have been successful in one area (eg an inner city district) may not work equally well in an area with different characteristics. It is also known that the use of involuntary or coercive measures may be different in groups with different demographic characteristics. Further research is needed on the most effective ways of achieving the goal in different circumstances and with different service user groups.

11.       Many examples within the compendium highlight the benefits of involvement of people with lived experience of mental health care, or of psychosocial disabilities, at every level. This includes the formation and development of legislation and policy, the design of services and the delivery of care. The value of peer-led systemic advocacy organisations, and of the involvement of people with lived experience in training and in service delivery is highlighted in the compendium and needs to be appropriately resourced.

12.       Early care or treatment of a person who is in crisis or mental health distress may prevent the use of an involuntary or coercive measure. Therefore, initiatives to promote mental health[4] by decreasing stigma and increasing public awareness about the prevention, recognition and treatment of mental disorders can contribute to the goal.

13.       The compendium highlights examples of the benefits of advance or crisis care planning, where a service user clarifies how they would like people to respond to them should they have a future crisis or deterioration in mental health. Knowledge of their wishes and preferences may help services to be more responsive to them in the future and avert the use of a coercive or involuntary measure. The importance of involving service users in developing their treatment plans has been emphasised previously in Rec(2004) 10[5] and in the draft Additional Protocol.[6]

14.       The compendium gives examples of initiatives that focus on activating the community support available to a service user, for example in their family or social networks (subject to the right to confidentiality of the person concerned). Promoting social support[7] and social engagement may help to decrease the need for involuntary measures.

15.       The use of involuntary or coercive measures should be seen as an adverse outcome, from which lessons should be learnt. Any use of such measures (including involuntary placement, involuntary treatment, seclusion and restraint) should be appropriately documented[8]. Such documentation should address, amongst other things, why a less coercive approach was not feasible. Specific requirements for the monitoring and documentation of seclusion and restraint are set out in Article 17 of the draft Additional Protocol. As soon as possible after the relevant event a local review should take place to consider whether lessons can be learnt in relation to the service user’s future care, or more generally. The documentation should also be accessible to those undertaking quality assurance and monitoring[9].

16.       In the compendium, the need to have an effective means of hearing and responding to complaints, and learning from them, in order to decrease the use of coercive measures, is emphasised at several points. The requirement to provide a complaints procedure is set out in Rec (2004)10[10] and Article 22 of the draft Additional Protocol sets out specific requirements for complaints procedures for those subject to involuntary measures.

17.       The compendium also highlights the work of WHO on promoting person-centred and rights-based approaches in community mental healthcare. In order to decrease the use of coercive measures WHO recommends, amongst other measures, reflection and change concerning the role of all stakeholders including the justice system, the police, general health care workers and the community at large. Recalling that the Convention on Human Rights and Biomedicine includes Article 28 on Public Debate, promoting public debate on the importance of avoiding the use of coercive measures could contribute to achieving the goal.

18.       The compendium does not cover practices relevant to children with mental health problems. It is proposed to also limit the scope of the future recommendation to adults. The issues related to adolescents and children in mental healthcare have already been identified as a possible area for future action, possibly in cooperation with the Steering Committee for the Rights of the Child (CDENF) in the framework of the new Strategy for the Rights of the Child.