Sundheds- og Forebyggelsesudvalget 2013-14
SUU Alm.del Bilag 204
Offentligt
ADVANCE UNEDITED VERSIONCommittee on the Rights of Persons with Disabilities
Draft General comment on Article 12 of the Convention-Equal Recognition before the Law*
* Adopted by the Committee at its tenth session (2 – 13 September 2013).
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Justification of the General Comment1.Equality before the law is a basic and general principle of human rights protectionand is indispensable for the exercise of other human rights. The Universal Declaration ofHuman Rights (UDHR) and The International Covenant on Civil and Political Rights(ICCPR) specifically guarantee the right to equality before the law. Article 12 of theConvention on the Rights of Persons with Disabilities (CRPD) provides further descriptionof the content of this civil right and focuses on the areas in which people with disabilitieshave traditionally been denied the right. It does not provide additional rights to people withdisabilities; it simply describes the specific elements required to ensure the right to equalitybefore the law for people with disabilities on an equal basis with others.2.Given the importance of this Article, the Committee has provided interactive fora fordiscussions on legal capacity. Arising from these very useful deliberations on the provisionsof Article 12 by experts, State Parties, disabled people’s organizations (DPOs), non-governmental organisations (NGOs), treaty monitoring bodies, national human rightsinstitutions and UN Agencies, the Committee found it imperative to give further guidancein a General Comment.3.In the consideration of the initial reports of the different States Parties that have beenreviewed so far, the Committee has observed that there is a general misunderstanding of theexact scope of the obligations of States Parties under Article 12. Until now there has been ageneral failure to understand that the human rights-based model of disability implies theshift from a substitute decision-making paradigm to one that is based in supported decision-making. The present general comment has the purpose of exploring the general obligationsthat are derived from the different components of Article 12.4.This General Comment reflects an interpretation of Article 12 which is premised onthe General Principles of the CRPD outlined in Article 3, including: respect for inherentdignity, individual autonomy including the freedom to make one’s own choices, andindependence of persons; non-discrimination; full and effective participation and inclusionin society; respect for difference and acceptance of persons with disabilities as part ofhuman diversity and humanity; equality of opportunity; accessibility; equality between menand women; and respect for the evolving capacities of children with disabilities and respectfor the right of children with disabilities to preserve their identities.5.The UDHR, the ICCPR, and the CRPD each specify that the right to equalrecognition before the law is operative ‘everywhere’; in other words there are nocircumstances permissible under international human rights law where a person may bedeprived of the right to recognition as a person before the law, or in which this right may belimited. This is reinforced by the terms of Article 4(2) of the ICCPR, which provides thatno derogation of this right is permissible even in circumstances of public emergency.Although an equivalent prohibition on derogation of the right is not included in the CRPD,the ICCPR parent article provides this protection by virtue of Article 4(4) of the CRPD,which provides that the provisions of the CRPD do not derogate from existing internationallaw.6.The right to equality before the law is also reflected in other core international andregional human rights treaties. Article 15 of the Convention on the Elimination ofDiscrimination against Women (CEDAW) also guarantees women equality before the lawand requires the recognition of women’s legal capacity on an equal basis with men,including the legal capacity to enter contracts, administer property and exercise their rightsin the justice system. Article 3 of the African Charter of Human and Peoples Rights(ACHPR) enumerates the right to be equal before the law and enjoy equal protection of thelaw. Article 3 of the American Convention on Human Rights (ACHR) enshrines the right to
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ADVANCE UNEDITED VERSIONjuridical personality and requires that everyone have a right to recognition as a personbefore the law.7.States must holistically examine all areas of law to ensure that persons withdisabilities are not having their right to legal capacity restricted on an unequal basis withothers. Historically, persons with disabilities have been discriminatorily denied their rightto legal capacity in many areas via substitute decision-making regimes such asguardianship, conservatorship, mental health laws that permit forced treatment, and others.These practices need to be abolished to ensure that full legal capacity is restored to personswith disabilities on an equal basis with others.8.Article 12 affirms a permanent presumption that all persons with disabilities havefull legal capacity. Legal capacity has been prejudicially denied to many groups throughouthistory, including women (particularly upon marriage), and ethnic minorities. However,persons with disabilities remain the group whose legal capacity is most commonly deniedin our legal systems. The right to equal recognition before the law requires that legalcapacity is a universal attribute, which inheres in all persons by virtue of their humanity,and applies to persons with disabilities on an equal basis with others. Legal capacity isindispensable for the exercise of economic, social and cultural rights. It acquires a specialsignificance for the fundamental decisions persons with disabilities take in their lives in theareas of health, education and work. The denial of legal capacity to persons with disabilitieshas also in many cases led to the deprivation of many fundamental rights, including thefollowing: the right to vote, the right to marry and found a family, reproductive rights,parental rights, the right to give consent for intimate relationships and medical treatmentand the right to liberty.9.All persons with disabilities including those with physical, mental, intellectual orsensory impairments can be affected by denials of legal capacity and substitute decision-making. However, persons with cognitive or psycho-social disabilities were, and are,disproportionately affected by substituted decision-making regimes and denials of legalcapacity. The Committee reaffirms that an individual’s status as a person with a disabilityor the existence of an impairment (including a physical or sensory impairment) can neverbe the basis for a denial of legal capacity or of any of the rights in Article 12. All practicesthat in purpose or effect violate Article 12 need to be abolished to ensure that full legalcapacity is restored to persons with disabilities on an equal basis with others.
Normative Content of Article 12Article 12 (1)10.Article 12(1) reaffirms the right of individuals with disabilities to be persons beforethe law. This guarantees that every human being is respected as a person possessing legalpersonality, which is a prerequisite for the recognition of an individual’s legal capacity.Article 12 (2)11.Article 12(2) recognises that persons with disabilities enjoy legal capacity on anequal basis with others in all areas of life. Legal capacity includes both the capacity to be aholder of rights and an actor under the law. Legal capacity to be a holder of rights entitlesthe individual to the full protection of her rights by the legal system. Legal capacity to actunder the law recognizes the individual as an agent who can perform acts with legal effect.The right to recognition as a legal agent is also reflected in Article 12(5) CRPD, whichoutlines the duty of states to “take all appropriate and effective measures to ensure the equalright of persons with disabilities to own or inherit property, to control their own financialaffairs and to have equal access to bank loans, mortgages and other forms of financial
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ADVANCE UNEDITED VERSIONcredit, and shall ensure that persons with disabilities are not arbitrarily deprived of theirproperty.”12.Legal capacity and mental capacity are distinct concepts. Legal capacity is theability to hold rights and duties (legal standing) and to exercise these rights and duties(legal agency). It is the key to accessing meaningful participation in society. Mentalcapacity refers to the decision-making skills of an individual, which naturally vary amongindividuals and may be different for a given individual depending on many factors,including environmental and social factors. Article 12 does not permit perceived or actualdeficits in mental capacity to be used as justification for denying legal capacity.13.In most of the state reports the Committee has examined so far, the concepts ofmental and legal capacity have been conflated so that where an individual is thought tohave impaired decision-making skills, often because of a cognitive or psychosocialdisability, her legal capacity to make a particular decision is consequentially removed. Thiscan be done simply based on the diagnosis of a disability (status approach), or where anindividual makes a decision that is thought to have negative consequences (outcomeapproach), or where an individual’s decision-making skills are thought to be deficient(functional approach). In all these approaches, an individual’s disability and or decision-making skills are accepted as a legitimate basis for denying her legal capacity and loweringher status as a person before the law. Article 12 does not permit this discriminatory denialof legal capacity and instead requires that support be provided for the exercise of legalcapacity.Article 12 (3)14.Article 12(3) recognizes the right of persons with disabilities to support for theexercise of legal capacity. States must refrain from denying legal capacity, and instead mustprovide access to the support that may be necessary to make decisions that have legaleffect.15.Support for the exercise of legal capacity must respect the rights, will andpreferences of persons with disabilities and should never amount to substitute decision-making. Article 12(3) does not specify the form of assistance that must be provided.‘Support’ is a broad term capable of encompassing both informal and formal supportarrangements, and arrangements of varying type and intensity. For example, persons withdisabilities may choose one or more trusted support persons to assist them in exercisingtheir legal capacity for various types of decisions, or may use other forms of support, suchas peer support, advocacy (including self advocacy support), or assistance incommunication. Support for the legal capacity of persons with disabilities might includemeasures encompassing universal design and accessibility, for example, the burden ofproviding understandable information from private and public actors such as banks andfinancial institutions in order to enable persons with disabilities to perform the legal actsrequired to open a bank account, enter into contracts, or other social transactions. (Supportcan also constitute the development and recognition of diverse and unconventional methodsof communication, especially for those who use non-verbal communication to express theirwill and preferences.)16.The type and intensity of support desired will vary significantly between individualsdue to the diversity of persons with disability. This is in accordance with Article 3(d)CRPD, which sets out ‘respect for difference and acceptance of persons with disabilities aspart of human diversity and humanity’ as a general principle of the Convention. At all timesincluding crisis situations, the individual autonomy and capacity of persons with disabilitiesto make decisions must be respected.
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ADVANCE UNEDITED VERSION17.Some persons with disabilities only seek the recognition of their right to legalcapacity on an equal basis with others in Article 12(2), and may not wish to exercise theirright to support enumerated in Article 12(3).Article 12 (4)18.Article 12(4) outlines the safeguards that must be present in a system of support forthe exercise of legal capacity. Article 12(4) must be read holistically with the rest of Article12 and the whole of the Convention. It requires States Parties to create appropriate andeffective safeguards for the exercise of legal capacity. The primary purpose of thesesafeguards must be to ensure the respect of the individual’s rights, will and preferences. Inorder to accomplish this, the safeguards must provide protection from abuse on an equalbasis with others.Article 12 (5)19.Article 12(5) requires that States Parties take measures legislative and otherwise(administrative, judicial and other practical measures) to ensure the equal right of personswith disabilities with respect to financial and economic affairs. Access to finance andproperty has traditionally been denied to persons with disabilities based on the medicalmodel of disability. This approach of denying legal capacity for financial matters must bereplaced with support to exercise legal capacity, in accordance with Article 12(3). Just asgender may not be used as basis for discrimination in this field, (Article 13(b) CEDAW)neither may disability.
Obligations of States Parties20.State Parties have the obligation to respect, protect and fulfil the right to equalrecognition before the law of persons with all disabilities. In this regard, the Committeerecommends that States should refrain from any action that deprives persons withdisabilities of the right to equal recognition before the law. They should take action toprevent non-state actors and private individuals from interfering with the ability of personswith disabilities to realise and enjoy their human rights, including the right to legalcapacity. One aim of support to exercise legal capacity is to build the confidence and skillsof individuals so that they can exercise their legal capacity with less assistance in the futureif they wish. States Parties are obliged to provide training for those receiving support sothat the individual can decide when to reduce support, or when they no longer requiresupport for the exercise of legal capacity.21.In order to recognise ‘universal legal capacity,’ whereby all individuals (regardlessof disability or decision-making skills) inherently possess legal capacity, states mustabolish denials of legal capacity that are discriminatory on the basis of disability in theirpurposeoreffect (CRPD Article 2, in conjunction with Article 5). Status-based systems forthe denial of legal capacity violate Article 12 because they are facially discriminatory, asthey permit the imposition of a substituted decision-maker solely on the basis of theindividual having a particular diagnosis. Similarly, functional tests of mental capacity, oroutcome-based approaches that lead to denials of legal capacity violate Article 12 if theyare either discriminatory or disproportionately affect the right of persons with disabilitiesto equality before the law.22.This Committee has repeatedly stated in its Concluding Observations on Article 12that States Parties must “review the laws allowing for guardianship and trusteeship, andtake action to develop laws and policies to replace regimes of substitute decision-making bysupported decision-making, which respects the person’s autonomy, will and preferences.”
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ADVANCE UNEDITED VERSION23.Regimes of substitute decision-making can take many different forms, includingplenary guardianship, judicial interdiction, and partial guardianship. However, theseregimes have some common characteristics. Substitute decision-making regimes can bedefined as systems where 1) legal capacity is removed from the individual, even if this isjust in respect of a single decision, 2) a substituted decision-maker can be appointed bysomeone other than the individual, and this can be done against the person’s will, and 3)any decision made by a substitute decision-maker is bound by what is believed to be in theobjective ‘best interests’ of the individual – as opposed to the individual’s own will andpreferences.24.The obligation to replace regimes of substitute decision-making by supporteddecision-making requires both the abolishment of substitute decision-making regimes, andthe development of supported decision-making alternatives. The development of supporteddecision-making systems in parallel with the retention of substitute decision-makingregimes is not sufficient to comply with Article 12.25.A supported decision-making regime is a cluster of various support options whichgive primacy to a person’s will and preferences and respect human rights norms. It shouldprovide protection for all rights, including those related to autonomy (right to legalcapacity, right to equal recognition before the law, right to choose where to live, etc.) andrights related to freedom from abuse and ill-treatment (right to life, right to bodily integrity,etc.). While supported decision-making regimes can take many forms, they should allincorporate some key provisions to ensure compliance with Article 12. These conditionsinclude the following:(a)Supported decision-making must be available to all. An individual’s level ofsupport needs (especially where these are high), should not be a barrier to obtainingsupport in decision-making.(b)All forms of support to exercise legal capacity (including more intensiveforms of support) must be based on the will and preference of the individual, not onthe perceived/objective best interests of the person.(c)An individual’s mode of communication must not be a barrier to obtainingsupport in decision-making, even where this communication is unconventional, orunderstood by very few people.(d)Legal recognition of the supporter(s) formally chosen by the individual mustbe available and accessible, and the State has an obligation to facilitate the creationof these supports, particularly for people who are isolated and may not have accessto naturally-occurring supports in the community. This must include a mechanismfor third parties to verify the identity of a support person as well as a mechanism forthird parties to challenge a decision of a supporter if s/he believes the supporter isnot acting based on the will and preference of the individual.(e)In order to comply with the Article 12(3) requirement that States Parties takemeasures to ‘provide access’ to support, States Parties must ensure support measuresare available at nominal or no cost to persons with disabilities and that a lack offinancial resources is not a barrier to accessing support for the exercise of legalcapacity.(f)The use of support in decision-making must not be used as a justification forlimiting other fundamental rights of persons with disabilities. This is especially sofor the right to vote, right to marry (or establish a civil partnership) and found afamily, reproductive rights, parental rights, the right to give consent for intimaterelationships and medical treatment and the right to liberty.
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ADVANCE UNEDITED VERSION(g)The person must have the right to refuse support and end or change thesupport relationship at any time they choose.(h)There must be safeguards for all processes connected to legal capacity andsupports to exercise legal capacity. The goal of these safeguards must be to ensurethat the person’s will and preferences are being respected.26.The right to equality before the law has a long history of recognition as a civil andpolitical right, with roots in the ICCPR. As such, rights within Article 12 attach at themoment of ratification. States Parties have an obligation to take steps to immediatelyrealize the rights within Article 12, including the right to support for the exercise of legalcapacity. The doctrine of progressive realization (Article 4(2)) does not apply to legalcapacity.
Interrelationship of Article 12 with other Provisions of the Convention27.Recognition of legal capacity is also inextricably linked to the enjoyment of manyother human rights contained in the CRPD. These include, but are not limited to, the rightto access justice (Article 13), to be free from involuntary detention in a mental healthfacility and forced mental health treatment (Article 14), respect for physical and mentalintegrity (Article 17), liberty of movement and nationality (Article 18), to choose where andwith whom to live (Article 19 CRPD), freedom of expression (Article 21), to marry andfound a family (Article 23 CRPD), to consent to medical treatment (Article 25 CRPD), andto vote and stand for election (Article 29 CRPD). Without the recognition of the individualas a person before the law, the ability to assert, exercise, and enforce these, and many otherConvention rights, is significantly compromised.Article 5 Equality and Non-discrimination28.To achieveequalrecognition before the law, legal capacity must not be denieddiscriminatorily. Article 5 CRPD guarantees that all people are equal under and before thelaw and have a right to equal protection of the laws. It also prohibits all discrimination onthe basis of disability. Article 2 CRPD defines discrimination as “any distinction, exclusionor restriction on the basis of disability which has the purpose or effect of impairing ornullifying the recognition, enjoyment or exercise, on an equal basis with others, of allhuman rights and fundamental freedoms.” Legal capacity denials that have the purpose oreffect of interfering with the right of persons with disabilities to equal recognition beforethe law are a violation of CRPD Articles 5 and 12. The state might have the ability torestrict the legal capacity of individuals based on certain circumstances, e.g. bankruptcy orcriminal conviction. The rights to equal recognition before the law and freedom fromdiscrimination require that when the state is permitted to remove legal capacity it must beon the same basis for all individuals. Thus, it must not be based on a personal trait such asgender, race, or disability or have the purpose or effect of treating such persons differently.29.Freedom from discrimination in the recognition of legal capacity restores autonomyand respects the human dignity of the person in accordance with the principles enshrined inArticle 3 (a) CRPD. Freedom to make one’s own choices most often requires legalcapacity. Independence and autonomy include the power to have decisions legallyrespected. The need for support and reasonable accommodation in making decisions cannotbe used to question legal capacity. Respect for difference and acceptance of persons withdisabilities as part of human diversity and humanity (Article 3(d)) is incompatible withgranting legal capacity on an assimilationist basis.30.Non-discrimination includes the right to reasonable accommodation in the exerciseof legal capacity (Article 5(3)). Article 2 defines reasonable accommodation as any
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ADVANCE UNEDITED VERSIONnecessary and appropriate modification and adjustments which do not impose adisproportionate or undue burden, where needed in a particular case, to ensure to personswith disabilities the enjoyment or exercise on an equal basis with others of all human rightsand fundamental freedoms. The right to reasonable accommodation in the exercise of legalcapacity is separate from and complementary to the right to support for exercising legalcapacity. States are required to make any modifications or adjustments to allow individualswith disabilities to exercise legal capacity, unless it is a disproportionate or undue burden.This may include, but is not limited to: access to essential buildings such as courts, banks,social benefit offices, voting venues, etc.; accessible information regarding decisions whichhave legal effect; and personal assistance. The right to support for the exercise of legalcapacity is not limited by the claim of disproportionate or undue burden. The state has anabsolute obligation to provide access to support for the exercise of legal capacity.Article 6 Women with Disabilities31.Article 15 CEDAW restored legal capacity to women on an equal basis with men,acknowledging that recognition of legal capacity is integral to equal recognition before thelaw. Paragraph 2 states that: “States Parties shall accord to women, in civil matters, a legalcapacity identical to that of men and the same opportunities to exercise that capacity. Inparticular, they shall give women equal rights to conclude contracts and to administerproperty and shall treat them equally in all stages of procedure in courts and tribunals.”This applies to all women, including women with disabilities. The CRPD acknowledges inArticle 6 that women with disabilities may be subject to multiple and intersectional formsof discrimination based on gender and disability. For example, women with disabilitiesexperience high rates of forced sterilisation, and are often denied control of theirreproductive health and decision-making, including being assumed not to be capable ofconsenting to sex. Certain jurisdictions also have higher rates of imposing substitutedecision-makers on women than men. Therefore, it is particularly important to reaffirm thatthe legal capacity of women with disabilities should be recognised on an equal basis withall others.Article 7 Children with Disabilities32.Article 12 protects equality before the law for all persons, regardless of age. TheConvention also recognizes the developing capacities of children in Article 7(2&3) where itacknowledges that in ‘all actions concerning children with disabilities, the best interests ofthe child shall be a primary consideration.’ To comply with Article 12, states must examinetheir laws to ensure that the will and preferences of children with disabilities are respectedon an equal basis with children without disabilities.Article 9 Accessibility33.The rights in Article 12 are closely tied to the right to accessibility in Article 9because the right to equal recognition before the law is necessary to enable persons withdisabilities to live independently and participate fully in all aspects of life. The right toaccessibility guarantees the identification and elimination of barriers to facilities or servicesopen to or provided to the public. To the extent that these barriers include the recognition oflegal capacity, the right to accessibility overlaps and is sometimes dependent upon therealization of the right to legal capacity. States must examine their laws and practices toensure that both the rights to legal capacity and accessibility are being realized.Article 13 Access to Justice34.State parties must ensure that persons with disabilities have access to justice on anequal basis with others. The recognition of the right to legal capacity is essential for access
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ADVANCE UNEDITED VERSIONto justice in many respects. Persons with disabilities must be recognized as persons beforethe law with equal standing in courts and tribunals, in order to seek enforcement of theirrights and obligations on an equal basis with others. States must also ensure that personswith disabilities have access to legal representation on an equal basis with others. This hasbeen identified as a problem in many jurisdictions and must be remedied – includingensuring that individuals who experience interferences with their right to legal capacityhave the opportunity to challenge these interferences (on their own behalf or with legalrepresentation) and to defend their rights in court. (Persons with disabilities have often beenexcluded from key roles in the justice system, such as the ability to be a lawyer, judge,witness, or member of a jury.)35.Police, social workers, and other first responders must be trained to recognizepersons with disabilities as full persons before the law and to give the same weight tocomplaints and statements from persons with disabilities as they would give to non-disabled persons. This entails training and awareness raising in these important professions.Persons with disabilities must also be granted legal capacity to testify on an equal basiswith others. Article 12 guarantees support for the exercise of legal capacity, including thecapacity to testify in judicial, administrative and other adjudicative proceedings. Thissupport could take various forms, including recognizing diverse communication methods,allowing video testimony in certain situations, procedural accommodations and otherassistive methods. In addition, the judiciary must be trained and made aware of theirobligation to respect the legal personhood of persons with disabilities, including legalagency and standing.Articles 14 and 25 Liberty and Consent36.Respecting the right to legal capacity on an equal basis includes respecting the rightof persons with disabilities to liberty and security of the person. It is an on-going problemthat people with disabilities are denied legal capacity and are detained in institutions againsttheir will, either without regard to obtaining consent or on the consent of a substitutedecision maker. This practice constitutes arbitrary deprivation of liberty and violatesArticles 12 and 14 and States must refrain from such actions. It is recommended that StatesParties provide a mechanism to review cases of persons with disabilities placed in anyresidential setting without specific consent from the individual.37.The right to health in Article 25 includes the right to health care on the basis of freeand informed consent. This obligates States Parties to require all health and medicalprofessionals (including psychiatric professionals) to obtain free and informed consent frompersons with disabilities. In conjunction with the right to legal capacity on an equal basiswith others, this also obligates States to refrain from permitting substitute decision-makersto provide consent on behalf of persons with disabilities. All health and medical personnelshould ensure the use of appropriate consultation skills that directly engage the person withdisabilities and ensure, to the best of their abilities, that assistants or support persons do notsubstitute or have undue influence over the decisions of persons with disabilities.Articles 15, 16, and 17 Respect for Personal Integrity and Freedom from Torture,Violence, Exploitation, and Abuse38.As has been established in numerous concluding observations, forced treatment bypsychiatric and other health and medical professionals is a violation of the right to equalrecognition before the law and an infringement upon the rights to personal integrity (Article17), freedom from torture (Article 15), and freedom from violence, exploitation and abuse(Article 16). This practice denies the right to legal capacity to choose medical treatment andis therefore a violation of Article 12. States Parties must, instead, provide access to supportfor decisions about psychiatric and other medical treatment. Forced treatment has been a
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ADVANCE UNEDITED VERSIONparticular problem for persons with psycho-social, intellectual, and other cognitivedisabilities. Policies and legislative provisions that allow or perpetrate forced treatmentmust be abolished. This is an on-going violation in mental health laws across the globe,despite empirical evidence indicating its lack of effectiveness as well as views of peopleusing mental health systems who have expressed deep pain and trauma as a result of forcedtreatment. The Committee recommends that State parties should ensure that decisions thatinvolve a person’s physical or mental integrity can only be taken with the free and informedconsent of the person with disability concerned.Article 18 Nationality39.Persons with disabilities have the right to a name and registration of their birth aspart of the right to recognition everywhere as a person before the law (Article 18(2)). StatesParties must take the necessary measures to ensure that children with disabilities areregistered at birth. This right is contained in the Convention on the Rights of the Child(CRC) (Article 7), but children with disabilities are disproportionately likely not to beregistered. This denies them citizenship, often also denies them access to health care andeducation, and can even lead to their death with relative impunity, because there is noofficial record of their existence.Article 19 Independent Living40.To fully implement Article 12, it is imperative that persons with disabilities haveopportunities to develop and express their will and preferences, in order to exercise theirlegal capacity in conditions equal to others. This means that persons with disabilities musthave the opportunity to live independently in the community, and have choice and controlover their everyday lives, on an equal basis with others, as enshrined in Article 19.41.Interpreting Article 12(3) in light of the right to community living in Article 19means that supports for the exercise of legal capacity should be provided using acommunity-based approach. Communities must be recognized by States as assets andpartners in the learning process on the types of supports needed to exercise legal capacity,including raising awareness about different support options. States Parties must recognizepersons with disabilities’ own social networks and naturally-occurring community supports(including friends, family and schools, among others), as key to supported decision-making.This is consistent with the emphasis of the CRPD on full inclusion and participation in thecommunity.42.The segregation of persons with disabilities into institutions continues to be apervasive and insidious problem in violation of a number of Convention rights. Theproblem is exacerbated by the widespread denial of legal capacity to persons withdisabilities, which allows others to consent to their placement in institutional settings. Thedirectors of institutions themselves are also commonly vested with the legal capacity of theindividuals that reside there. This places all power and control over the individual in thehands of the institution. In order to comply with the CRPD and respect the human rights ofpersons with disabilities, deinstitutionalization must be achieved and legal capacity returnedto the individuals who must be able to choose where and whom to live (CRPD Article 19).The individual’s choice of where and with whom to live should not interfere with their rightto access support for the exercise of legal capacity.Article 22 Privacy43.Substitute decision-making regimes, in addition to being incompatible with Article12, also potentially violate the right to privacy of persons with disabilities, as substitutedecision-makers gain access to a wide range of personal and health information regardingpersons with disabilities. In establishing supported decision-making systems, States Parties10
ADVANCE UNEDITED VERSIONmust ensure that those providing support for the exercise of legal capacity fully respect theright to privacy of persons with disabilities.Article 29 Political Participation44.Denial or restriction of legal capacity has been used to deny political participation,especially the right to vote, for certain persons with disabilities. In order to fully realise theequal recognition of legal capacity in all aspects of life, it is important to recognise the legalcapacity of persons with disabilities in public and political life (Article 29). This means thatthe person’s decision-making ability cannot be used to justify any exclusion of persons withdisabilities from exercising their political rights, including the right to vote, to stand forelection, and to serve as a member of a jury.45.States parties should therefore protect and promote the right of persons withdisabilities to access support of their choosing in voting by secret ballot, and to participatein all elections and referenda without discrimination of any kind. The Committeerecommends further that the State parties should guarantee the right of persons withdisabilities to stand for elections, to effectively hold office and to perform all publicfunctions at all levels of government, with reasonable accommodation, and support, wheredesired, to exercise legal capacity.
Implementation at the national level and main implementation gaps46.In view of the previously outlined normative content and obligations, States Partiesshould take the following steps to ensure the full implementation of Article 12.1.Recognize individuals with disabilities as persons before the law, havinglegal personality and legal capacity in all aspects of life on an equal basis withothers. This requires the abolition of substitute decision-making regimes, and anymechanisms for deprivation of legal capacity which discriminate in purpose or effectagainst persons with disabilities.2.Establish, legally recognise, and provide access for persons with disabilitiesto a broad range of supports for the exercise of legal capacity. These supports mustbe safeguarded to ensure they are premised on respect for the rights, will andpreferences of persons with disabilities. Such supports should meet the criteria setout above in the section on the obligations on States Parties to comply with Article12(3).3.In the development and implementation of legislation, policies and otherdecision-making processes to implement Article 12, States Parties shall closelyconsult with and actively involve persons with disabilities, including children withdisabilities, through their representative organizations.47.The Committee encourages States Parties to undertake or to devote resources to thedevelopment of research on best practices respecting the right to equal recognition of legalcapacity and support to exercise legal capacity.
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