Article 16 - Freedom from exploitation, violence and abuse
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43. After a number of delegations commented on the repetitive language in draft article 12 of the text prepared by the Working Group, the Coordinator proposed that the facilitator’s text be used as the basis for discussion, on the understanding that it was very much a work in progress.
44. There was general agreement that draft article 12 should focus on freedom from violence and abuse, with the right to free and informed consent to interventions or treatment dealt with in a separate draft article 12 bis.
45. There was general agreement to delete the phrase “and their families” from paragraph 1 of the facilitator’s text, but some delegations proposed its insertion in paragraph 2, after the words “persons with disabilities”.
46. There was broad agreement that women and girls, or women and children, were particularly vulnerable to violence and abuse, but no agreement about where and how such a reference should be made. Interested delegations were invited to confer about an appropriate way to deal with the issue.
47. Consideration was given to a number of proposals for dealing with the forms of violence and abuse spelled out in paragraph 3, although a consensus had not yet formed around one of the options.c Interested delegations were requested to work with the facilitator (Ivana Grollová, Czech Republic) with a view to resolving the issue.
48. Taking into account the discussions, paragraph 1 reads:
“1. States parties shall take all appropriate legislative, administrative, social, educational and other measures to protect persons with disabilities both within and outside the home, from [all forms of exploitation, violence and abuse] [all forms of harm, including] [all forms of exploitation, violence and abuse, including abandonment, violence, injury or mental or physical abuse, abduction, harassment, neglect or negligent treatment, maltreatment or exploitation, including economic and sexual exploitation and abuse].”
49. There was general agreement to paragraph 2 of the facilitator’s text, although, as with paragraph 1, some divergence of views as to the need to mention families or caregivers of persons with disabilities. Some delegations took the view that the paragraph was not needed since it duplicated paragraph 1. The paragraph currently reads:
“2. States parties shall also take all appropriate measures to prevent violence and abuse by ensuring, inter alia, appropriate forms of assistance and support for persons with disabilities [and their caregivers], including through the provision of information and education on how to avoid, recognize and report instances of violence and abuse.”
50. Proposals to include the issue of persons with disabilities in situations of public emergency were not discussed on the understanding that they would be considered in conjunction with the discussions to be held on a separate draft article dealing with the issue (see paras. 12-14 above).
51. Clear support was expressed for paragraph 4, on the monitoring of facilities and programmes used by persons with disabilities. There was also a certain degree of support for inserting the word “regular” before the word “monitoring”.
52. There was some discussion on the scope of such a paragraph. While some delegations suggested its widening, there was general agreement that it should not be widened so much that it incorporated the services and facilities used by persons with disabilities since it was intended for more general use, such as in banks. The facilitator was requested to work with delegations with a view to formulating appropriate language.
53. Following the discussion, the paragraph became paragraph 3 of draft article 12, and reads:
“3. States parties shall ensure that all facilities and programmes, both public and private, [where persons with disabilities live or access services separate from others] are regularly and effectively monitored, in coordination with civil society, by independent authorities which include persons with disabilities and which make monitoring reports available to the public, in order to prevent the occurrence of violence or abuse.”
54. There was general agreement to paragraph 5 of the facilitator’s text with the minor reordering reflected below. Support was expressed for inserting the words “and welfare”, “cognitive” and “worth” in the paragraph. Following the discussion, the paragraph became paragraph 4 of draft article 12, and reads:
“4. States parties shall take all appropriate measures to promote the physical [cognitive] and psychological recovery, rehabilitation and social reintegration of persons with disabilities who are victims of any form of violence or abuse, including through the provision of protection services. Such recovery and reintegration shall take place in an environment that fosters the health [and welfare], self-respect, dignity [, worth] and autonomy of the person.”
55. There was general agreement to paragraph 6 of the facilitator’s text. One delegation suggested that the phrase “and, as appropriate, judicial involvement” (which had appeared in the text prepared by the Working Group) should be retained. The general sense, however, was that this intent was implicit in the paragraph and did not need to be spelled out.
56. One delegation suggested that the paragraph should also deal with the prevention of violence and abuse. Other delegations, however, considered that prevention was dealt with elsewhere in the convention and did not need to be repeated in paragraph 6. Concerned delegations were asked to discuss the issue with the facilitator.
57. Following the discussion, the paragraph became paragraph 5 of draft article 12, and reads:
“5. States parties shall put in place effective legislation and policies to ensure that instances of violence and abuse against persons with disabilities are identified, investigated and, where appropriate, prosecuted, and that protection services are available in such cases.”
Draft article 12 bis
58. Some delegations considered that involuntary medical treatment was tantamount to torture and should therefore continue to be dealt with under draft article 11, as in the text prepared by the Working Group. Most delegations, however, were of the view that issues relating to the right to free and informed consent to interventions should be dealt with in a separate article that focused solely on that issue.
59. There was general agreement that paragraph 1 should begin with a positive obligation of States parties to protect the integrity of persons with disabilities on a basis of equality with others. The paragraph currently reads:
“1. States parties shall protect the [physical and mental] integrity of persons with disabilities on a basis of equality of others.”
60. There was general agreement that the obligation of States parties to “protect persons with disabilities from forced interventions or forced institutionalization aimed at correcting, improving or alleviating any actual or perceived impairment” should be moved from paragraph 2 of draft article 11 to draft article 12 bis.
61. Some delegations suggested that the paragraph specifically list certain types of interventions (such as sterilization, abortion or removal of organs). Some delegations suggested that the issue was best dealt with in draft article 14.
62. The paragraph currently reads:
“2. States parties shall protect persons with disabilities from forced interventions or forced institutionalization aimed at correcting, improving or alleviating any actual or [perceived] impairment.”d
63. There was general agreement that the facilitator’s paragraphs 1 ter, quater and quinquies (which arose from the discussion of draft article 12) should be merged and replaced by a more general obligation.
64. While some delegations expressed the wish to regain such paragraphs in the article, other delegations considered that draft article 9 already provided for situations in which persons with disabilities could not exercise legal capacity. It was considered that reiteration of a right to intervene without consent might risk undermining the presumption that persons with disabilities had the legal capacity to give free and informed consent, and could run contrary to the spirit of the convention.
65. Other delegations considered that if there were to be a provision on involuntary treatment, it should provide that treatment be conducted on a nondiscriminatory basis. That is, rather than specify the grounds for involuntary intervention, the paragraph should specify that rules on involuntary intervention — for example, in times of medical emergency where obtaining consent is impossible — should be the same for all people, regardless of whether they have a disability or not.
66. Some support was expressed for such a provision, which was referred to the facilitator for refinement. The paragraph would read:
“3. In cases of medical emergency or issues of risk to public health involving involuntary interventions, persons with disabilities shall be treated on an equal basis with others.”
67. Some delegations proposed that the convention contain a provision that obliged States parties to minimize exceptions to the right to free and informed consent and to provide safeguards, although not all agreed that the paragraph was necessary. There was general agreement to consider the following proposed text:
“4. States parties shall ensure that involuntary treatment of persons with disabilities is:
“(a) Minimized through the active promotion of alternatives;
“(b) Undertaken only in exceptional circumstances, in accordance with procedures established by law and with the application of appropriate legal safeguards;
“(c) Undertaken in the least restrictive setting possible, and that the best interests of the person concerned are fully taken into account;
“(d) Appropriate for the person and provided without financial cost to the individual receiving the treatment or to his or her family.”