The right to take risks and make mistakes: equal recognition before the law for people with disabilities
The right to take risks and make mistakes: equal recognition before the law for people with disabilities
In
its first General Comment, the Committee on the Rights of Persons with
Disabilities says there has been a “general failure” to understand that
there has been a shift from away from the idea that people with
disabilities have decisions made for them, to a human rights-based view
that is based on supported decision-making.
The
General Comment deals specifically with Article 12 of the Convention on
the Rights of Persons with Disabilities which affirms that all persons
with disabilities have full legal capacity, with no exceptions. The
Committee says that whilst historically, many groups have been refused
this right, persons with disabilities “remain the group whose legal
capacity is most commonly denied in legal systems worldwide.”
People with disabilities are frequently subjected to “substituted
decision-making” via guardians or through mental health laws which
permit forced treatment, for example.
Speaking on behalf of the Committee, Theresia Degener said, “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’.”
General Comments are regularly published by the treaty monitoring
bodies, the committees that oversee the human rights conventions. They
are the result of a wide process of consultation and, although not
legally binding, are regarded as important legal references for
interpretation and implementation of specific aspects of the treaties.
The Committee stresses in its General Comment that civil, political,
economic, social and cultural rights cannot be fully exercised if legal
capacity is denied. 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 treatment, and the right to
liberty are all are all beyond the reach of people who do not have equal
recognition before the law.
