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Back to: Third Session | Draft Article 15 Comments on the draft text Download complete compilation of comments: MS Word
National Human Rights Institutions Ontario Human Rights Commission Footnote 51 The Commission is supportive of this Article. With respect to the concerns raised at footnote 51, the Commission would caution that the notion of independence not be lost in any revision. For example, the title of the Article might simply read “Living independently in the community”, and that the Article might be revised to read “… enable persons with disabilities to live independently of an institution and be fully included in the community… “. (b); (c) The Commission is supportive of these subparagraphs. In the Submission of the Ontario Human Rights Commission to the Ministry of Citizenship and Immigration Regarding the Consultations to Strengthen the Ontarians with Disabilities Act, the Commission raised the importance of measuring and monitoring the rate of unnecessary or “undue” institutionalization of persons with disabilities in order to safeguard the principle of integration over segregation. The concept of “undue institutionalization” was comprehensively addressed by the United States Supreme Court in Olmstead v. L.C., 527 U.S. 581 (1999). By a clear majority, the Court held that under the Americans with Disabilities Act, undue institutionalization qualifies as discrimination by reason of disability and that a person with a mental disability is “qualified” for community living when the state’s treatment professionals have determined that community placement is appropriate, the transfer from institutional care to a less restrictive setting is not opposed by the individual, and the placement can be reasonably accommodated, taking into account the resources available to the state and the needs of others with mental disabilities. EDF supports the reference to living independently. This makes clear that disabled people have the right, as all other citizens, to choose the way in which they want to live, choice which will include to live with their family or not. The situation of so many disabled persons confined and secluded against their will in large residential institutions is one of the key issues this Convention should solve. It is therefore very important to maintain paragraph b) of this article. For those disabled people that freely choose to live in an institution, provisions need to be set in place to ensure that they have full saying in the way their institution is managed, as well as specific protection of their rights. It has been stated that, the “right to independence or an independent life embodies one (very important) aspect of the principle of autonomy. It underlines the right to live a life outside of institutions, where barriers for full social inclusion are removed and the necessary technical aids and personal assistance are provided.” (Cf. “Discussion Paper on Founding Principles of a Convention on Rights of Persons with Disabilities,” Danish Institute for Human Rights, A/AC.265/2003/CRP/9, available at: http://www.un.org/esa/socdev/enable/rights/a_ac265_2003_crp9.htm) Thus, the concepts of living independently and being included in the community are related concepts of great importance for inclusion in a human rights treaty for people with disabilities. Footnote 51 references the confusion by some Working Group members over the meaning of the term “living independently.” The Ad Hoc Committee may wish to explicitly define the term as used in this article or, as the footnote suggests, consider alternative terms, so that it is clear that the fundamental concepts encompassed are choice and autonomy, not separation from families. Footnote 52 highlights the objections of some members of the Working Group to paragraph (b). Should this paragraph be removed (an option unlikely to be supported by most disability activists), it will be of critical importance for the Ad Hoc Committee to thoroughly review due process and other legal protections throughout the draft treaty text, in order to ensure the rights of those subject to institutionalization by their States Parties. Footnote 53 expresses the concern of some Working Group members about the ability of some States Parties to provide the support services referenced in paragraphs (c) and (d). The concerns of these States Parties could be alleviated through the understanding that these provisions could be subject to progressive realization. An independent living and inclusion in the society, is a better title. Para (b), should not be undermined and is fine as it now stands. ”…persons with disabilities are not obliged to live in an institution or in a particular living arrangement”. Right not to be institutionalised against ones own will, is important. World Network of Users and Survivors of Psychiatry WNUSP questions the use of the term “residential” in paragraph c. Residential services, as contrasted with in-home services, suggest facilities that may actually be a type of institution depriving people with disabilities of their autonomy. Such facilities should not be promoted in the name of “living independently and in the community.” |