MHE’s submission to the consultation on the draft Council of Europe Disability Strategy

MHE’s submission to the consultation on the draft Council of Europe Disability Strategy (2017-2023)

Executive summary

In this submission Mental Health Europe (MHE) – a leading European mental health NGO whose work is underlined by a human rights-based approach and who represents associations, organisations and individuals active in the field of mental health and well‐being in Europe, including (ex)users of mental health services, service providers, and professionals – welcomes the Council of Europe’s draft Disability Strategy. We appreciated the focus on harmonising the Disability Strategy with the UNCRPD and the inclusion of a priority point on equal recognition before the law which focuses on legal capacity and supported decision-making. However, we also note that some important human rights issues are neglected in the draft Strategy including institutionalisation, the right to health as well as forced placement and treatment of persons with psychosocial disabilities. On this basis, MHE has formulated a number of recommendations to the Council of Europe which aim to ensure that the Strategy will more fully respond to some worrying human rights trends in Europe and more comprehensively address the specific barriers that persons with psychosocial disabilities face.

MHE recommends that the Council of Europe:

• Include a priority area on the right to health with a specific mention of access to mental healthcare on an equal basis with physical healthcare as well as prevention of healthcare without free and informed consent, in line with the UN CRPD, ICESCR and the revised European Social Charter.
• Include a priority area on the right to live independently and be included in the community as recommended by the joint submission to the present consultation from the European Expert Group on the transition from institutional to community-based care.
• Recognise the link between denial of legal capacity and forced placement and treatment in the priority area on equal recognition before the law and include corresponding action points in the bi-annual work plan which would include recommendations to Member States of the Council on reforming their mental health and capacity laws in line with the UN CRPD, the collection and dissemination of human rights compliant practices in these areas and specific human rights training for law enforcement, healthcare professionals, specifically psychiatrists, the judiciary, social workers, and other actors who come into contact with persons with psychosocial disabilities during crisis situations.
• Ensure that DPOs and civil society can meaningfully participate in the development and implementation of all disability-related policies, such as the Disability Strategy and its biannual work plan, which includes giving them adequate time to respond meaningfully to consultations and fully taking their views into account when developing and implementing such policies.

Introduction

Mental Health Europe¹ welcomes the draft of the new Disability Strategy (the draft Strategy) of the Council of Europe (the Council) and would like to thank the Council for providing the opportunity to contribute to it through this consultation.² Overall MHE is pleased to see the move towards synergising the European human rights framework with that of the UN in this draft Strategy with a specific acknowledgment of the contribution and importance of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) to the field of disability rights. MHE notes with appreciation that one of the five priority areas is dedicated to legal capacity, which we recently highlighted the need for in our position paper on the mid-term review of the Disability Strategy of the European Union (EU).³ Having said that, we note that the draft Strategy is far more limited than the previous Council Action Plan on Disability⁴ which ran from 2006 to 2015. The Action Plan was very ambitious with a wide range of action points while the new Disability Strategy focuses on just 5 key priorities areas. In MHE’s view this has led to a more focused and manageable Strategy, however we are concerned that some of the most important issues facing persons with psychosocial disabilities have been left out of the Strategy including the right to health, forced placement and treatment and de-institutionalisation.

The positives

Seeking synergies – a positive approach

MHE is pleased to see the focus on creating synergies and cooperation and coordination with the work of the Committee on the Rights of Persons with Disabilities, the Special Rapporteur on disabilities, WHO, the World Bank, and the EU. MHE also notes with appreciation the clear effort made in the Strategy to mainstream the rights of persons with disabilities across the work of the Council. MHE has previously expressed its concern about the drafting of an Additional Protocol to the Oviedo Convention on ‘involuntary placement and treatment’ for persons with mental health problems which appeared, in our view, to be out of step with the UNCRPD.⁵ We hope that the draft Strategy’s new approach will mark the beginning of real cooperation and coordination between the two human rights systems as well as the mainstreaming of the social model of disability throughout the work of the Council.

Another strength of the Strategy is the acknowledgment of the role of corporate social responsibility. We recently highlighted the UN Guiding Principles on Business and Human Rights⁶ and the role that service providers play in respecting the rights of persons with psychosocial disabilities in our submission to the Committee on the Rights of Persons with Disabilities on Article 19 (right to live independently and be included in the community) UNCRPD.⁷ We hope that the provision of training to businesses engaged with persons with disabilities, including service providers and health professionals, will be included in the selection of actions and activities in the bi-annual work plan which will accompany the Strategy.

The inclusion of autonomy

In our recent position paper on the mid-term review of the Disability Strategy of the European Union we noted with concern the total omission of legal capacity. This issue is of supreme importance for the persons with psychosocial, intellectual and other disabilities living under guardianship regimes all over Europe who are unable to make choices about the most basic aspects of their lives. These individuals are often unable to enjoy a host of fundamental human rights including access to justice, the right to vote, the right to live and be included in the community, the right to marry and to have a family, and the right to manage their own finances. States Parties to the UNCRPD in Europe have been slow to enact the shift towards supported, rather than substituted, decision-making required by Article 12 of the UNCRPD. The last Council Action Plan neglected to mention the barriers which are erected by the denial of legal capacity. We are therefore delighted to learn that the Council has not shied away from addressing legal capacity and has put it front and centre in the draft Strategy by making equal recognition before the law one of the 5 priority areas in the strategy.

What’s missing?

Forced placement and treatment

However, having said this, key abuses and violations of human rights which are often a direct result of substituted-decision making are not mentioned in either the priority area on equal recognition before the law or freedom from exploitation and abuse. For example, forced placement in institutions and psychiatric facilities as well as forced treatment for persons with psychosocial disabilities are not addressed anywhere in the text. Forced placement of persons with psychosocial disabilities in psychiatric units and institutions of Persons with Disabilities.⁸ Article 25 of the UNCRPD states that healthcare should be provided on the same basis to persons with disabilities as to others including on the basis of free and informed consent. Moreover, according to the Special Rapporteur on torture, forced treatment which includes forced drugging, shock, psychosurgery, restraint and seclusion, can amount to torture.⁹ Failing to address, or indeed even mention, these prevalent human rights abuses and violations denies the lived reality of many persons with psychosocial disabilities who are still subject to mental health laws based on substituted decision-making which remain the norm throughout Europe. It is MHE’s belief that the Council should be showing leadership on these most serious of human rights issues.

The right to health

For persons with psychosocial disabilities, access to healthcare is of paramount importance but is also an issue which is sadly absent from the draft Strategy. Health is only really mentioned in relation to the priority area on equality and discrimination or training for healthcare staff. Much of the draft focuses on overarching issues but in doing so it largely ignores economic and social rights. This amounts to a denial of the reality that one of the greatest challenges facing persons with disabilities is poverty which in turn hampers the enjoyment of their rights. At MHE we aware that physical health care is regrettably often prioritised over mental healthcare within Member State health systems particularly in times of economic crisis.¹⁰Mental healthcare is often considered a luxury rather than something that we have a right to access. This is despite the fact that there is a wealth of research to show that mental and physical health are interlinked¹¹ and that mental health is intrinsic to overall health and well-being. For people with psychosocial disabilities, access to healthcare which treats their mental health is equally as important as access to treatment for their physical health, if not more so. The right to health, as authoritatively articulated in the International Covenant on Economic, Social and Cultural Rights (ICESCR), expressly recognises that health, and the right to the highest attainable standard of it, is made up of mental and physical health. Part 1.11 of the Revised European Social Charter on the right to health also states that ‘everyone has the right to benefit from any measures enabling him to enjoy the highest possible standard of health attainable’. Furthermore, Article 25 of the UNCRPD on health obligates State Parties to specifically provide those health services that are needed by persons with disabilities specifically because of their disabilities, including early identification and intervention as appropriate, and services designed to minimize and prevent further disabilities.

The right to live independently and be included in the community

Apart from one reference to persons living in institutional settings, the draft Strategy does not address the right to live independently and be included in the community as articulated in Article 19 of the UNCRPD. This is in direct contrast to previous work done by the Council as well as the sterling efforts made by the Council’s Commissioner for Human Rights to highlight the problem. Indeed, the last strategy had a whole action line on community-living. The battle against institutionalisation and exclusion has not been won yet and any Disability Strategy which fails to include de-institutionalisation will not deliver on its promise to guarantee the ‘freedom of choice, full citizenship and active participation in society’. As a member of the European Expert Group on the Transition from Institutional to Community-based Care(EEG), MHE wishes to re-iterate the views expressed in the EEG joint submission to the present consultation – that the right to live independently and be included in the community should be addressed through an additional priority area.

Consultation with Disabled Persons Organisations (DPOs) and disability-allied organisations

The draft of the Strategy rightly points out that the beneficiaries of the Strategy are persons with disabilities and notes that stakeholders were involved in a ‘broad and open consultation’ during the preparation of the document. MHE appreciates this participatory approach as it is in line with Article 4.3 of the UNCRPD which outlines the need to consult with and actively involve persons with disabilities in relation to decision-making processes on issues which concern them. However, for future consultations to be meaningful, it is important to remember that DPOs and disability-allied organisations like MHE will likely have members across Europe who they will wish to consult when drafting comments. One month is simply an inadequate length of time to allow us to consult with our members meaningfully. In addition, we also hope that this spirit of participation continues and that DPOs and civil society will be consulted when the bi-annual work plan is drafted.

How MHE can help

We note that the section on awareness raising includes a risk factor on negative portrayals of persons with disabilities in the media. As an NGO working on mental health, MHE monitors media coverage and is keenly aware of the insensitive portrayals of persons with psychosocial disabilities and misconceptions which are irresponsibly propagated in the media. We believe such coverage has a direct impact on the rights of persons with psychosocial disabilities and is part of the reason for reluctance to reform mental health and capacity laws. One of MHE’s key communications actions is to fight against negative media coverage and we have put together tips for journalists on how to report responsibly on persons with psychosocial disabilities and issues linked to mental health. We would be happy to share our work on this area with the Council.¹² In addition, we note that training for all professionals engaged in social work, healthcare, education, justice, law enforcement, culture and tourism is mentioned in the Strategy. Language is very important when it comes to mental health and although the term is not used in the draft Strategy, MHE has noticed that the Council sometimes uses the word ‘disorder’ when referring to persons with mental health problems and psychosocial disabilities which some find stigmatising. MHE wishes to take this opportunity to offer our assistance to the Council when developing training in order to ensure that it is sensitive and responsible on issues relating to mental health.¹³

Recommendations

In light of the above comments, MHE therefore recommends that the Council of Europe:

• Include a priority area on the right to health with a specific mention of access to mental healthcare on an equal basis with physical healthcare as well as prevention of healthcare without free and informed consent, in line with the UN CRPD, ICESCR and the revised European Social Charter.
• Include a priority area on the right to live independently and be included in the community as recommended by the joint submission to the present consultation from the European Expert Group on the transition from institutional to community-based care.
• Recognise the link between denial of legal capacity and forced placement and treatment in the priority area on equal recognition before the law and include corresponding action points in the bi-annual work plan which would include recommendations to Member States of the Council on reforming their mental health and capacity laws in line with the UN CRPD, the collection and dissemination of human rights compliant practices in these areas and specific human rights training for law enforcement, healthcare professionals, specifically psychiatrists, the judiciary, social workers, and other actors who come into contact with persons with psychosocial disabilities during crisis situations.
• Ensure  that  DPOs  and  civil  society  can  meaningfully  participate  in  the  development  and implementation of all disability-related policies, such as the Disability Strategy and its biannual work plan, which includes giving them adequate time to respond meaningfully to consultations and fully taking their views into account when developing and implementing such policies.