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Article 17 - Freedom from exploitation, violence and abuse
Background Documents | Article 17 Background
Seventh Session | Fifth Session | Fourth
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Seventh Session
Governments
Non-governmental organizations
International Disability Caucus
Comments, proposals and amendments submitted electronically
Governments
JOINT PROPOSAL - ARGENTINA
on behalf of Brazil, Chile, Colombia, Costa Rica, Jamaica, Mexico, Panama and Uruguay
Article 17
1. States Parties shall protect the dignity and integrity of the person of persons with disabilities on an equal basis with others.
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.
2 bis States Parties shall prohibit, and protect persons with disabilities from medical or scientific experimentation without the free and informed consent of the person concerned
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.
[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.] 2
Footnotes:
2. The final common position on the bracketed text is pending further consultation.
Article 17
Part II CHILDREN
2 bis) States Parties shall protect children with disabilities from sterilisation on the basis of disability
Note: This issue has been dealt with in Article 23.
Article 17
EU Position on “Women” and “Children” in response to the joint facilitator’s proposal, 31 January 2006
“Children”
[EU does not agree to the introduction of a new paragraph 2bis.]
Intervention on Article 17
19.1.2006 (Afternoon)
My delegation supports the central idea contained in this Article and would support the retention of Para 4 by removing square brackets. As one delegation said safeguards are also important. In Para 2 there has been some concern about the use of the word ‘institutionalisation’. This could be dealt with by adding, after the words ‘forced intervention’ the words ‘of any kind’ and removing the words ‘on forced institutionalisation’ Para 2 would then read “States Parties shall protect persons with disabilities from forced interventions ‘of any kind’ aimed at correcting, improving or alleviating any actual or perceived impairment”. We also have sympathy for those delegations which have suggested removing the word ‘perceived’. In this context the language proposed by New Zealand for Para 1 would also be acceptable, with the same modification i.e. deletion of words ‘or institutionalisation’ after the words ‘of any kind’. I understand this proposal also involves removal of Para 2.
Article 17
1. States Parties shall protect the integrity of the person with disabilities on a basis of equality with others.
2. States Parties shall protect persons with disabilities from forced interventions or forced institutionalisation aimed at correcting, improving or alleviating any Actual or perceived impairment.
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.
4.States Parties shall ensure that involuntary treatment of persons with disability is:
a) minimizing 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 safeguard,
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
Article 17
1. States Parties shall protect the dignity and integrity of the person of persons with disabilities on an equal basis with others.
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. In particular, States Parties shall prohibit, and protect persons with disabilities from, medical or scientific experimentation without the free and informed consent of the person concerned
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.
[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.]
Article 17-bis. Right to nationality.
“States Parties shall ensure that persons with disabilities are not deprived of their nationality, are not denied the right to acquire a nationality or to change their nationality, arbitrarily or on the basis of disability”.
Non-governmental organizations
INTERNATIONAL DISABILITY CAUCUS
Chairman’s text as amended by the IDC
Article 17
PROTECTING THE INTEGRITY OF THE PERSON
(DELETE ARTICLE. )
(JUSTIFICATION: IDC proposes to move the newly phrased paragraph 1 to article 15. IDC has proposed to include in article 15 the wording which the Chair has proposed in paragraph 2 of this article. As IDC is also proposing to delete paragraphs 3 and 4, this would mean that there is no need for a separate article 17.)
(REPLACE “States Parties shall protect the integrity of the person with disabilities on a basis of equality with others.” BY “Every person with a disability has the right to have his or her physical, mental and moral integrity respected.” AND MOVE TO ARTICLE 15)
(JUSTIFICATION: The right to respect for integrity of the person is not properly stated in paragraph 1. The Chair’s text refers only to an obligation to “protect the integrity of persons with disabilities on a basis of equality with others,” which is substantially weaker than similar texts in regional instruments. (For example, the American Convention on Human Rights states unequivocally, “Every person has the right to have his physical, mental and moral integrity respected.”))
(MOVE SUBSTANCE OF THIS PARAGRAPH TO ARTICLE 15.
States Parties shall protect persons with disabilities from forced interventions or forced institutionalisation aimed at correcting, improving or alleviating any actual or perceived impairment.)
(DELETE THE WHOLE PARAGRAPH: 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.)
(JUSTIFICATION: Paragraph 3 discriminates against people with disabilities, since some disabilities are inappropriately treated as medical emergencies or risks to public health. States could say that a psychosocial crisis constitutes either one, and authorize forced administration of psychiatric drugs or electroshock.)
[4. (DELETE THE WHOLE PARAGRAPH: 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.]
(JUSTIFICATION: Paragraph 4 is nothing but a derogation of the right to free and informed consent, based on disability.)
IDC Response on Children
Facilitator’s text
2 bis) States Parties shall protect children with disabilities from sterilisation on the basis of disability
IDC response
The IDC fully supports the inclusion of this paragraph
Rationale
In many countries in the world, parents arrange for girls with disabilities to be sterilised in order to avoid the risk of pregnancy and even to avoid the inconvenience of dealing with menstruation. Sterilisation of girls with disabilities represents a fundamental violation of their physical integrity. It exposes them to major medical intervention for no clinical benefit. It denies them the right to found a family. It is an intervention, in most instances, serving the interests of the parents rather than the child.
The principle of protection from forced interventions is insufficient to protect children with disabilities. The concept of ‘forced’ does not arise because, in most jurisdictions, the parents have the right to give consent while a child is a minor. ‘Force’ only arises if consent is over-ridden. And in these cases, the parent is giving consent. This amendment is essential if the practice of imposing sterilisations on children with disabilities is to be ended.
IDC
Alternative texts for article 17
Option A: Chair’s text paragraphs 1 and 2, without paragraphs 3 and 4
1. States Parties shall protect the integrity of the person with disabilities on a basis of equality with others.
2. States Parties shall protect persons with disabilities from forced interventions or forced institutionalisation aimed at correcting, improving or alleviating any actual or perceived impairment.
Option B: Strengthened version of Chair’s text paragraphs 1 and 2
1. Every person with a disability has the right to have his or her physical, mental and moral integrity respected.
2. States Parties shall prohibit, and protect persons with disabilities from forced interventions or forced institutionalisation aimed at correcting, improving or alleviating any actual or perceived impairment.
Option C: IDC/Project South proposal
1. Every person with a disability has the right to have his or her physical, mental and moral integrity respected.
2. States Parties shall prohibit, and protect persons with disabilities from, medical or scientific experimentation or interventions without the free and informed consent of the person concerned, whether in public or private settings.
3. Children shall not be sterilized on the basis of disability.
4. States Parties shall create mechanisms to penalize violations of the rights recognized in this article.
Women’s IDC
Response to the Facilitator’s Proposals on Women with Disabilities
from 28/30 January 2006
ARTICLE 17
PROTECTING THE INTEGRITY OF THE PERSON
Facilitator:
2 bis) States Parties shall protect children with disabilities from sterilisation on the basis of disability
Women’s IDC
Although we understand that the issue of sterilisation on the basis of disability regarding children with disabilities is mentioned under this article, Women’s IDC feels very strongly to reiterate the importance to define forced sterilisation and abortion as violence also under article 16.
INTERNATIONAL DISABILITY CONVENTION SOLIDARITY IN KOREA (IDCSK)
IDCSK fully supports the proposals made by the IDC except only the below.
Article 17
PROTECTING THE INTEGRITY OF THE PERSON
(We suggest the paragraph 1 of this article move to the Preamble of this convention or the Chapeau of this article.
1. (REPLACE “States Parties shall protect the integrity of the person with disabilities on a basis of equality with others.” BY “Every person with a disability has the right to have his or her physical, mental and moral integrity respected.” AND MOVE TO ARTICLE 15) )
(We suggest this paragraph move to a new paragraph 3 of article 14.
(MOVE SUBSTANCE OF THIS PARAGRAPH TO ARTICLE 15.
2. States Parties shall protect persons with disabilities from forced interventions or forced institutionalisation aimed at correcting, improving or alleviating any actual or perceived impairment.) )
Article 17
Revisions:
This Article should be integrated to Article 15. (See Article 15).
NATIONAL ASSOCIATION OF COMMUNITY LEGAL CENTRES (NACLC)
Article 17 – Protecting the integrity of the person
Article 17 has special significance for people with disability who are often the subject of compulsory treatment programs. It is appropriate that this Article be included provide protection in the instance that a person can be the subject of involuntary treatment.
The NACLC notes a degree of inconsistency in the language between paragraphs
17(2) (‘forced interventions or forced institutionalisation’), 17(3) (‘involuntary
treatment’), and 17(4) (‘involuntary treatment’). The NACLC also notes this language is inconsistent with Article 15, which refers to consent. The NACLC recommends that the language relating to consent be made consistent throughout.
Given the serious nature of any intervention where the integrity of the person is in question, it is our view that even with consent there should be safeguards around nonemergency interventions or treatment.
Paragraph 17(2) should clearly refer to interventions or institutionalisation solely aimed at correcting, improving or alleviating any actual or perceived disability.
Regardless of the mechanism by which consent to such interventions or institutionalisation is achieved, no action of this sort should be permissible without a process of independent review that is established by law consistent with the Convention and international human rights law.
The Article should make it clear that all other interventions that impact on the integrity of the person should only be undertaken when the usual consent requirements have been fulfilled. For example, if no consent is required to undertake an emergency medical procedure, then no consent ought be required where a person with a disability requires such a procedure.
The NACLC submits that it is vital that 17(4) be included but modified to take account of treatment or interventions with or without consent. In light of our comments above in respect of paragraph 17(2), the list of safeguards included in Article 17(4) can be reduced to remove sub-paragraph (b). The remaining principles are appropriate in respect of any form of intervention that impacts on the integrity of the person.
Finally, for consistency throughout, the language used should be interventions or
institutionalisation rather than treatment. The Draft Convention generally should be reviewed to ensure consistency of this language.
Recommendation 13
That Article 17 be amended to remove the use of the terms ‘involuntary’ and ‘forced’, and for the Article to be redrafted to the extent necessary to use the term ‘without consent’.
Recommendation 14
That a new paragraph be included in Article 17 to provide safeguards to ensure that any intervention contemplated within paragraph 17(2) with consent be subject to a requirement that it be approved by an independent court or tribunal in accordance with law, with the application of appropriate legal safeguards and consistent with the Convention and international human rights law.
Recommendation 15
That Article 17(4) be modified to refer to any form of intervention (whether it be with consent or without), and that sub-paragraph (b) of Article 17(4) be removed but all of the remaining safeguards be retained.
PEOPLE WITH DISABILITY AUSTRALIA (PWDA)
Article 17
Intervention by
People with Disability Australia Incorporated
(Australian) National Association of Community Legal Centres
Mr Chairperson:
This intervention is made on behalf of People with Disability Australia and the Australian National Association of Community Legal Centres. Thank you for the opportunity to address the Ad Hoc Committee.
At the outset we recommend the Ad Hoc Committee recognise an important conceptual distinction between the subject matter of this article and articles:
• 12 - which deals, in part, with the issues of consent and decision making; and
• 15 - which deals with the issues of torture, and cruel, inhuman and degrading treatment, and is therefore limited
(i) to treatment that is appropriately characterised in this way; and
(ii) to activities by State actors.
As we have indicated to the Ad Hoc Committee previously, it is our view that there are very limited circumstances in which compulsory assistance is necessary for the realisation of the human rights of specific persons with disability.
Even if this proposition is not accepted for whatever reason, it must nevertheless be recognised that most States currently have, and will continue to have, legislation and programs that involve the provision of compulsory assistance to some individuals.
There is no argument that forced treatment has, and continues to be, the source of grave human rights violations.
For this reason, failure to include an article in this convention that would provide stringent safeguards of the interests of persons with disability subject to compulsory assistance would be a very serious oversight. We therefore strongly support the incorporation of paragraph 4 into this article.
We would, however, recommend that an additional element be incorporated into this article in a new paragraph (e) that would state that compulsory assistance must be provided in a manner that complies with international law and standards. This would have the benefit of recognising existing international standards in this area, thus not derogating from the existing human rights, and provide the basis for their further development.
Thank you for the opportunity to address the Ad Hoc Committee.
PWDA
Report on National Consultations
Article 17
The range of issues debated by participants in Article 17 were similar and linked to those expressed in Articles 12 and 14. In particular, the debate centred on issues related to informed consent, compulsory assistance and substitute decision-making. Participants indicated, therefore that there needs to be consistency in these three articles that provides for limiting the criteria by which involuntary interventions are made and in a least restrictive way and ensuring strong safeguards including access to a legal process.
Most participants supported accepting this Article as it stands, but with strengthening safeguards.
Recommended text
1. States Parties shall protect the integrity of the person with disabilities on a basis of equality with others.
2. States Parties shall protect persons with disabilities from forced interventions or forced institutionalisation aimed at correcting, improving or alleviating any actual or perceived impairment.
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.
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, including prompt automatic review, and then review at regular intervals by an independent tribunal and with access to legal representation, such representation to be provided free of charge where the person cannot secure it themselves;
(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.