"We hope that States will be guided by these General Comments to review their laws and practices to achieve greater recognition of the human rights of persons with disabilities"
Recognizing legal capacity should not be dependent on discriminatory mental capacity assessments, says UN Committee on Rights of Persons with Disabilities. Accessibility is key for the enjoyment of human rights on an equal basis.
People with disabilities have the same rights as everyone to make decisions about their lives, including the right to take risks and make mistakes, a UN committee has stressed in new guidelines on implementing the Convention on the Rights of Persons with Disabilities.
"Respect for the freedom to make choices should be accorded to all persons with disabilities, no matter how much support they need," said Theresia Degener from the Committee on the Rights of Persons with Disabilities (CRPD). "People with disabilities, including those with psychosocial or cognitive impairments, must be supported in making decisions, and not have decisions made for them, even when it is thought to be in their 'best interests'."
Article 12 of the Convention enshrines equal recognition before the law, stating that, "States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life".
In practice, however, many persons with disabilities are denied legal capacity, often on the basis of mental capacity assessments, and are deprived of fundamental rights, including the right to vote, the right to marry and found a family, and the right to liberty.
The CRPD notes that there is a general misunderstanding of States' obligations under Article 12 and a failure to recognize the importance of "supported decision-making." Instead, "substituted decision-making", where others make choices on the person's behalf, remains common - for example under guardianship regimes or through the use of mental health laws that permit forced treatment.
The CRPD, which monitors the implementation of the Convention, has now issued a detailed reading of Article 12 to clarify States' obligations. In its General Comment No 1, the Committee underscores the position that States are obliged to provide persons with disabilities with the broad range of support they may need to make decisions that have legal effect.
"Support in the exercise of legal capacity must respect the rights, will and preferences of persons with disabilities," the General Comment highlights. The CRPD recognizes that sometimes it is not practicable to determine exactly what an individual wants, but in these cases decisions should be made on the "best interpretation of their will and preference", rather than basing choices on what they regard as the "best interests" of the person.
Accessibility for all:
"Supported decision-making" is closely tied to accessibility of services, information and communication, set out under Article 9.
In its General Comment No 2, the CRPD details the importance of accessibility in allowing persons with disabilities to enjoy and realize their human rights and fundamental freedoms on an equal basis with others.
Persons with disabilities face many barriers, and so "it is important that accessibility is addressed in all its complexity, encompassing the physical environment, transportation, information and communication, and services," the CRPD notes.
Goods, products and services provided to the public must be accessible to all, regardless of whether they are owned and/or provided by a public authority or by a private enterprise, according to General Comment No 2.
All new goods, products, facilities, infrastructure, technology and services should be designed to be fully accessible by persons with disabilities. States should also set definite timeframes for and allocate adequate resources towards removing existing barriers. Austerity measures are no excuse for failing to ensure gradual accessibility for persons with disabilities.
Monitoring of accessibility is key, the CRPD says, and this should be done in a way that promotes the effective participation of persons with disabilities and their representative organizations.
"We hope that States will be guided by these General Comments to review their laws and practices to achieve greater recognition of the human rights of persons with disabilities," said Ms Degener. "And we hope these Comments will also help all persons with disabilities to gain respect and acknowledgment for their decisions and activities."
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