A significant step towards the right to make decisions for people with intellectual disabilities
Published: 18 October 2013
Countries have to make sure that
The ‘Committee on the Rights of Persons with Disabilities’
The Committee wrote an important document
The document says that all people with disabilities
Nobody can decide for people with disabilities.
Countries should make sure that people with disabilities
The draft General Comment on Article 12 written by the Committee on the Rights of Persons with Disabilities represents a significant step in the realization of the right of people with intellectual disabilities to make their own choices.
The draft General Comment, which is one of the only authoritative document to interpret the Convention, recalls the importance of having legal capacity as a universal attribute and reaffirms that „the existence of an impairment can never be the basis for a denial of legal capacity or of any of the rights in Article 12.“
The Committee on the Rights of Persons with Disabilities, first of all, reminds us about the history of legal capacity and the restriction other groups, such as women, had to face. People with disabilities are still “disproportionally affected by substituted decision-making regime”. These practices are not admissible anymore and full legal capacity must be restored to persons with disabilities on an equal basis with other.
The Committee underlines the lack of understanding by Member States of the scope of this article and makes the clear statement that „the development of supported decision-making systems in parallel with the retention of substitute decision-making regimes is not sufficient to comply with Article 12.“ But the Committee goes even further concretely criticising the status approach, the outcome approach as well as the functional approach. These three forms of assessment look the individual’s ability or decision-making skills. All of them are discriminatory approach, which are not permitted under Article 12.
The Committee recalls that support must be provided for the exercise of legal capacity and describes these supports as both „formal and informal“ and as „arrangements of varying type and intensity“. The type and intensity of support should echo the diversity of people with disabilities.
Inclusion Europe has been extremely pleased to read that the Committee, in its attempt to clarify what the word support means, also recognises Self-advocacy and peer support as forms of support which can assist people with disabilities in exercising their legal capacity.
The Committee describes the difference between substitue and supported decision-making by the perceived „best interests“ of the individual „as opposed to the individual’s own will and preferences.“ This definition is extremely important, together with the on the provisions on communication, for people with severe disabilities and complex needs.
The Committee proposes eight key elements to comply with Article 12. In short, they are:
a) the availability of supported decision-making; b) all forms of support must be based on will and preference of the individual; c) communication cannot be a barrier to get support in decision-making d) mechanisms of control for third parties must exist ; e) the related costs should be minimal for people will disabilities; f) no other right can be limited while using support in decision-making ; g) the person must have the right to refuse or change his/her support ; and finally h) safeguards must be in place.
In the last part of the general comment, the Committee recalls the central importance of Article 12 and its inextricable link with other articles of the Convention. Without recognition as a person before the law, the enforcement of other rights is compromised. This is for example the case for Article 5 Equality and Non-Discrimination, Article 9 accessibility, Article 13 Access to Justice, Article 25 – consent in health care, Article 19 Independent Living, Article 29 political participation and many other.
On that basis, the Committee invites the State Parties to abolish all substituted decision-making mechanisms, establish a wide range of supports for the exercise of legal capacity and involve people with disabilities and their representatives in this process.
You can read the whole General Comment here.