The Council of Europe commissioned study that undermine paradigm shift initiated by the UN CRPD

The ongoing discussions on whether or not to adopt the possible new Additional Protocol to the Oviedo Convention is influenced by a confidential study. The study on the UN CRPD and the compatibility of the Additional protocol to it is a legal opinion formulated in secrecy and kept confidential from the relevant UN bodies and other stakeholders. It isn’t objectively considering the UN CRPD, the authoritative guidance about the provisions of the UN CRPD by the international monitoring body of the convention, and the widespread and uniform interpretation and support it has within the UN system. The author in effect argues that the UN CRPD can be disregarded if one considers the Council of Europe’s pre-CRPD conventions and case law of an article on security and liberty of persons that today is viewed as outdated and discriminatory.

The Ministers’ Deputies Rapporteur Group (GR-H) met for the first time in this final stage of the review of the possible new Additional protocol to the Oviedo convention on the 27 May 2026. The GR-H is preparing the discussions on human rights for the decision-making body of the Council of Europe, the Ministers’ Deputies. The Secretariat prior to this had commissioned what was supposed to be a compatibility study to be done by prof. Andreas Zimmermann at the Potsdam University in Berlin. The idea of the study originated from a Parliamentary Assembly of the Council of Europe (PACE) Opinion that with a unanimous vote had rejected the draft Additional protocol.

Study/legal opinion classified

The study or legal opinion of prof. Zimmermann which is published in the “restricted” classified document GR-H(2026)9 could be described as a positioning document for ongoing Ministers’ Deputies negotiations rather than a full, balanced compatibility assessment.

While the UN CRPD, its General Comments and guidelines and a large number of supporting documents from the World Health Organisation, the UN Human Rights Council, the UN High Commission for Human Rights, the UN Human Rights mechanism, and the UN General Assembly all points towards a unified understanding of human rights in the field of disability and mental health, which is codified and exist in publicly available UN documents, this is not the case with the Council of Europe compatibility study.

The confidential legal analysis or opinion of prof. Zimmermann written for the Council of Europe conclude that the draft Additional Protocol cannot be regarded as being precluded by, or running counter to, the UN CRPD.

A questionable point is why the opinion doesn’t factually consider all required UN documents with the unified UN interpretation of the UN CRPD that it would require to be based on for it to be an actual legal analysis. And secondly why it doesn’t take the spirit with which the paradigm shift on mental health initiated by the UN CRPD was born in to consideration. Avoiding this whether intentional or not it undermines 20 years of work by the UN and civil society groups defending the interests of 100 million people.

Study conducted in secrecy

Prof. Andreas Zimmermann also did not take contact to the body empowered by the UN CRPD itself and the general practice of UN human rights treaty bodies to provide guidance and interpret the Convention: The UN CRPD Committee. The study was conducted in secrecy and it is kept like that to the relevant United Nations bodies and to civil society that in a unison voice has demanded the withdrawal of the draft Additional Protocol.

Even colleagues of Andreas Zimmermann, professors with speciality in bioethics at the Potsdam University were never consulted with and had no clue that the study was being done. This may be explained by the viewpoint expressed by Prof. Zimmermann to the European Times of it being an “independent” study.

Prof. Zimmermann declined to further comment on the study he wrote with reference to it being used in the drafting of a revision of the Additional protocol and negotiating process ongoing at the GR-H.

While it most certainly would have been expected from an actual legal analysis that it is based on all the relevant texts it analyses, it is surprising and even shocking that the author also did not appropriately consider the statements on the Additional protocol issued directly to the Council of Europe by the UN CRPD Committee. The Committee has issued a number of statements and open letters based on its authoritative guidance texts that in clear language lays out that the draft Additional Protocol ignores both the letter and the spirit of the UN CRPD.

UN CRPD Committee statement of January 2026

The UN CRPD Committee even shortly prior to the commissioning of the “compatibility study” issued another statement to the Council of Europe, which still is available on its website.

The UN CRPD Committee in that statement of 15 January 2026 noted that “the draft Additional Protocol, which purports to protect the rights of all persons with “mental disorders” with regard to the use of involuntary detention and involuntary treatment, is in flagrant violation of the human rights of persons with disabilities recognized by the Convention. It is in particular in open contradiction with Article 5 on equality and non-discrimination, Article 12 on the right to equal recognition before the law, Article 14 on the right to liberty and security, Article 15 on freedom from torture and cruel, inhuman or degrading treatment, Article 16 on freedom from exploitation, violence and abuse, Article 17 on the right to physical and mental integrity, Article 19 on the right of persons with disabilities to live independently and participate in community life, and Article 25 on the right to health.”

That UN CRPD statement with an attachment goes in to details on this over eight pages. And as part of these further notes that, “Although explicit reference is made to the Convention in the preamble to the draft Additional Protocol, the provisions are insufficient or conflict with the human rights standards for persons with disabilities enshrined in the Convention and developed by the Committee on the Rights of Persons with Disabilities.”

Paradigm shift on mental health undermined

The paradigm shift on disability and mental health initiated with the CRPD has a broad implication that the opinion of prof. Zimmermann now undermine. The World Health Organization’s Comprehensive Mental Health Action Plan 2013–2030, emphasizes that mental health services, including for persons with disabilities, must be provided in the community and be free from coercion. The 2023 joint WHO-OHCHR “Mental health, human rights and legislation: Guidance and practice” also call for legislative reform to end coercion in mental health services, replace psychiatric institutions with inclusive community support systems, and enshrine free and informed consent as the basis of all mental health-related interventions.

Likewise, governing bodies of the international community have reaffirmed the need to move away from coercion in mental health, such as the United Nations General Assembly in its Resolution A/RES/77/300 (2023) and the Human Rights Council, in its 2026 Resolution 61/18 on mental health and human rights.

Council of Europe warned for a decade

The UN CRPD Committee has been advising the Council of Europe’s bodies dealing with the Additional protocol for more than a decade with repeated communications.

Already in 2015 the UN CRPD Committee informed the bioethics committee (DH-BIO) that was drafting the Additional protocol as part of a public consultation process that “involuntary placement or institutionalization of all persons with disabilities, and particularly of persons with intellectual or psychosocial disabilities, including persons with “mental disorders”, is outlawed in international law by virtue of article 14 of the Convention, and constitutes arbitrary and discriminatory deprivation of liberty of persons with disabilities as it is carried out on the basis of actual or perceived impairment.” The statement by the Committee is in the file of the Additional protocol and available through the website of the Council of Europe.

The UN CRPD Committee further laid out that involuntary institutionalization and involuntary treatment, which are grounded on therapeutic or medical necessity, do not constitute measures for protecting the human rights of persons with disabilities, but “they are an infringement of persons with disabilities’ rights to liberty and security and their right to physical and mental integrity.”

The Committee pointed out that States parties to the Convention have an obligation to require all health and medical professionals (including psychiatric professionals) to obtain the free and informed consent of persons with disabilities prior to any treatment, so that persons with disabilities’ rights, autonomy, will and preferences are duly respected. And that States parties have an obligation not to permit substitute decision-makers to provide consent on behalf of persons with disabilities.

Deep trauma from forced treatment

And the UN CRPD Committee furthermore pointed out that “States parties must also abolish policies, legislative and administrative provisions that allow or perpetrate forced treatment, as it is an ongoing violation found in mental health laws across the globe, despite empirical evidence indicating its lack of effectiveness and the views of people using mental health systems who have experienced deep pain and trauma as a result of forced treatment.”

“Pursuant to article 4.1.d) of the Convention, Member States of the Council of Europe that are parties to the Convention, should refrain from engaging in any act or practice that is inconsistent with the Convention, including by engaging in the negotiation of regional standards that are not in line with the human rights approach to disability enshrined in the Convention,” the UN CRPD Committee stressed.

Commissioner for Human Rights: Legal safeguards inadequate in real world

The Council of Europe’s Commissioner for Human Rights has already declared in 2014, that human rights violations caused in the context of involuntary placements, and more generally in connection with the use of coercion in psychiatry:

“have their roots in outdated legal frameworks, but also assumptions the validity of which are being increasingly challenged. The premise so far has been that involuntary placement of persons with mental health problems was an inevitable necessity, since they present a danger to themselves and others. The focus was very much on designing safeguards and controls, often judicial in nature. Well, very often these safeguards do not work. The case-law of the Strasbourg Court is now full of examples where national procedures have gone terribly wrong, where the person whose life is at stake has entirely lost his say in a process which has essentially been reduced to a dialogue between the judge and the psychiatrist. We need to shift the focus to how coercion can be avoided in the first place, and how the person can best be supported in making healthcare choices.”

The Council of Europe’s Commissioner for Human Rights restated this directly to the Bioethics Committee (DH-BIO) as part of the public consultation process in 2015. He noted that he therefore is “unable to share DH-BIO’s assessment of the main cause of the violation of the human rights and dignity of persons in the context of such coercive practices set out in the letter inviting the Commission to comment, i.e. “legal gaps in certain member states, in particular concerning legal provisions governing measures for involuntary placement and treatment of persons with mental disorders”.

The Commissioner further noted that in his experience, “the larger problem is rather that the legal safeguards prove often inadequate in practice, owing to the shortcomings of existing legal systems and their inherently discriminatory nature. The Commissioner considers that human rights of persons with psychosocial disabilities are routinely violated while respecting the letter of existing legal safeguards, including some that are very similar to those proposed in the draft Additional Protocol.”

And “The Commissioner already pointed to the risk of an explicit conflict between international norms at the global and European levels, owing to the divergence of interpretation between the DH-BIO and the Committee on the Rights of Persons with Disabilities. He considers that such a situation would be detrimental both to the CRPD system, but also to the work of the Council of Europe.”