By Katarzyna Widlas-Klimsiak
The Council of Europe (CoE) is pursuing two different ways of protecting people who receive mental healthcare without their consent. A draft Additional Protocol to the Oviedo Convention would create binding obligations for states that ratify it. A new, non-binding Recommendation puts autonomy, consent and the prevention of coercion at the centre. The obvious assumption is that the treaty would offer stronger protection. A ratified treaty creates legal obligations; a recommendation does not. But legal force is only part of the picture. The way an instrument defines the problem also matters.
When safeguards normalise coercion
The draft Additional Protocol would require involuntary measures to be used only as a last resort, when strictly necessary to prevent a significant risk of serious harm. It would also require an appropriate setting, a therapeutic purpose, and procedures for appeal, representation and oversight. These safeguards are important, especially where people have no effective way to challenge their detention or treatment. Yet they create an ethical dilemma. By defining the conditions under which psychiatric coercion is lawful, a treaty may also make coercion a settled part of healthcare. The central question becomes: were the legal conditions satisfied?
That question is necessary, but incomplete. It does not always require authorities to explain why voluntary support was unavailable, why community services could not respond, or why a person’s refusal was treated as an obstacle to treatment rather than a decision deserving support and serious consideration.
This concern shaped the negative opinion issued by the Parliamentary Assembly of the Council of Europe (PACE) in January 2026. The Assembly recognised the Protocol’s protective purpose, but warned that codifying involuntary measures could hinder efforts to reduce or eliminate coercion. It suggested a non-binding recommendation as a more flexible route.
What happened before coercion?
In June 2026, the Committee of Ministers (CM) adopted Recommendation CM/Rec(2026)8 on respect for autonomy in mental healthcare. The Recommendation is not legally binding, and it does not prohibit every intervention without consent. Its importance lies in its starting point. It reaffirms free and informed consent, respect for the person’s will and preferences, access to community-based care, assistance in exercising rights, and the possibility of recording preferences for future care. This changes the ethical inquiry. Instead of asking only when coercion is justified, it asks what happened before coercion was considered.
Did the person receive information they could understand? Were they supported in expressing a decision? Were their objections and previously expressed preferences taken seriously? Were less restrictive options genuinely available? These questions expose a weakness in the language of “medical necessity”. Coercion may appear necessary because of a person’s condition. It may also appear necessary because the system has not invested in voluntary crisis support, community services or assistance with decision-making.
A lack of alternatives is not a neutral clinical fact. It may be the result of political and institutional choices.
Why this matters in practice
In Spivak v Ukraine, the European Court of Human Rights (ECtHR, the Court) examined the administration of neuroleptic medication without the applicant’s consent. The Court described free and informed consent as a cornerstone of personal autonomy. It was not satisfied that the medical necessity for the treatment had been convincingly demonstrated and found that the legal framework lacked effective safeguards against arbitrariness and abuse.
The case illustrates why lawful hospitalisation should not be treated as blanket permission for treatment. Placement and treatment raise related but different ethical questions. Even where hospitalisation is lawful, a particular intervention still requires justification and safeguards.
The new Recommendation could sharpen that scrutiny. When professionals or public authorities say that treatment without consent was unavoidable, they should have to explain not only why it was clinically indicated, but also what was done to support the person’s decision and which voluntary alternatives were available in practice.
The real test
None of this means that soft law automatically protects people better. A recommendation cannot change national legislation, stop an individual treatment or require governments to fund services. Its flexibility can encourage reform, but it can also permit symbolic compliance.
A government may adopt the language of autonomy while leaving decision-making power in the same hands. Services may record people’s preferences but override them routinely. Community care may exist on paper but remain inaccessible.
The real test is therefore concrete. Can treatment be challenged separately from detention? Must professionals document efforts to obtain informed consent? Is support for decision-making available in practice? Can an independent body order treatment to stop? Were voluntary alternatives actually accessible?
Binding safeguards remain essential. But safeguards alone do not answer the deeper ethical question: is the system organised around making coercion safer, or around making it less necessary?
A non-binding recommendation may express the more ambitious vision. Whether it produces stronger protection will depend on what governments, courts and healthcare institutions do with it.
Author: Katarzyna Widlas-Klimsiak
Affiliation: Poznań Human Rights Centre, Institute of Law Studies of the Polish Academy of Sciences
Competing Interests: None declared