26 - Habilitation and rehabilitation
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Draft article 21
77. There was general agreement in the Committee that draft article 21 should address the right to health, and a separate draft article 21 bis should address habilitation and rehabilitation. The Committee did not resolve, however, whether to retain medical, or health-related, rehabilitation in Article 21, or to delete all references to it and deal with it in Article 21 bis. The Committee agreed to consider this issue, and the proposed texts for Article 21 bis, further at a later date.
78. It was also generally agreed that the concept of health, as defined by the World Health Organisation, was a very broad one and that this needed to be reflected in the text (or a footnote). This could be achieved by using the descriptive language of the International Covenant on Economic, Social and Cultural Rights.
79. A proposal was made that persons with disabilities should not be denied food, water or life support, and this was supported by a number of delegations.
80. There was some support to strengthen the chapeau by replacing the word “recognise” with “guarantee”.
81. The chapeau currently reads:
States Parties [recognise/guarantee] that all persons with disabilities have the right to the enjoyment of the highest attainable standard of physical and mental health without discrimination on the basis of disability. States Parties shall ensure no person with a disability is deprived of that right, and shall take all appropriate measures to ensure access for persons with disabilities to [affordable/free] health and [medical/health-related rehabilitation services]. In particular, States Parties shall:
Paragraphs (a) to (m)
82. There was broad agreement that the sub-paragraphs should be strengthened by the deletion of qualifying words such as “strive”, although there was also some limited support for retaining the idea of progressive realisation in the text.
83. It was also generally agreed that in many of the sub-paragraphs there was a great deal of duplication with other Articles in the Convention text and that others were too prescriptive. There were consequently many proposals to streamline or delete sub-paragraphs including:
(d), which was too prescriptive, and in any case, if were retained, more properly belonged in the new proposed draft article 21 bis on rehabilitation;
(f) and (m), on which there was general agreement at the fourth session to consolidate in draft article 4 f ;
(g) on the grounds that the Committee agreed at its 4th session to consider general language on the training of professionals dealing with persons with disabilities, but without prejudice to its inclusion or ultimate placement in the text g , and
(l) which not only replicates part of sub-paragraph (j) but also is covered in Article 14.
84. The Committee was noted that where text was to be deleted or merged, there was a need to ensure that important elements were not lost, and were incorporated in the text when the same issues were considered again under other Articles. It would be necessary, for example, to reconsider whether the confidentiality of medical records was adequately covered under draft article 14.
85. Some delegations proposed the deletion of the words “including sexual and reproductive health services” from sub-paragraph (a), but there was broad support for retaining it. The Committee noted that this phrase was not intended to alter or prejudice the general policies of governments in regard to family planning or related matters, to the extent that these were permitted by national legislation of general application. The phrase was a statement on the right to be free from non-discrimination, and its effect was that persons with disabilities would need to be treated on an equal basis with others in this area.
86. In paragraph (a), there was general agreement to include the concept of population-based public health programmes, and general support to replace the word “citizens” with “persons”.
87. In paragraph (b) there was support to include the concept of early detection and treatment
88. There was also support for adding “rural areas” after “people's own communities” in paragraph (c).
89. There were divergent views on whether paragraph (e) should deal with prevention of secondary disabilities, the prevention of disabilities more generally, or be deleted entirely on the grounds that its provisions were already covered adequately by preceding sub-paragraphs.
90. There was also some support for proposals to add references to the compatibility of research with respect for human rights and the protection of human life to paragraph (f), if this sub-paragraph were retained.
91. There was also general support to merge paragraphs (h), (i) and (j).
92. Some delegations considered that (k) should be deleted because the issue would be covered by draft article 12bis. Other delegations preferred to retain it here.
93. Following the discussion, paragraphs (a) – (j) of the text read:
(a) provide persons with disabilities with the same range and standard of [affordable/free] health [and rehabilitation services] as provided other persons, [including sexual and reproductive health services] and population-based public health programmes;
(b) provide those health and [medical/health-related rehabilitation] services needed by persons with disabilities specifically because of their disabilities [including early identification and intervention as appropriate];
(c) endeavour to provide these health and [medical/health-related rehabilitation] services as close as possible to people's own communities [and in rural areas];
(e) [provide programs and services to prevent and protect against [secondary] disabilities, including amongst children and the elderly;]
(f) [encourage research and the development, dissemination and application of new knowledge and technologies that benefit persons with disabilities [that are compatible with the respect for human rights and the protection of human life] ];
(h/i/j) require health professionals to provide care of the same quality to persons with disabilities as to others by, where necessary, raising awareness of the human rights, dignity, autonomy and needs of persons with disabilities through training and the promulgation, in consultation with other concerned parties, of ethical standards for public and private healthcare.
94. The draft article was referred to the facilitator (Mu'taz Hyassat, Jordan) for further discussion.