Laws | Topical Collection : Disability Human Rights Law

2019

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10 pages, 215 KiB

Open AccessConcept Paper

End Coercion in Mental Health Services—Toward a System Based on Support Only

by Martin Zinkler and Sebastian von Peter

Laws 2019, 8(3), 19; https://doi.org/10.3390/laws8030019 - 24 Aug 2019

Cited by 22 | Viewed by 14111

Abstract

Based on the UN Convention on the Rights of Persons with Disabilities (CRPD), several UN bodies, among them the High Commissioner for Human Rights, have argued for a complete ban of all coercive interventions in mental health care. The authors conceptualize a system [...] Read more.

Based on the UN Convention on the Rights of Persons with Disabilities (CRPD), several UN bodies, among them the High Commissioner for Human Rights, have argued for a complete ban of all coercive interventions in mental health care. The authors conceptualize a system for mental health care based on support only. Psychiatry loses its function as an agent of social control and follows the will and preferences of those who require support. The authors draw up scenarios for dealing with risk, inpatient care, police custody, and mental illness in prison. With such a shift, mental health services could earn the trust of service users and thereby improve treatment outcomes. Full article

26 pages, 321 KiB

Open AccessEditor’s ChoiceArticle

Questioning Segregation of People Living with Dementia in Australia: An International Human Rights Approach to Care Homes

by Linda Steele, Kate Swaffer, Lyn Phillipson and Richard Fleming

Laws 2019, 8(3), 18; https://doi.org/10.3390/laws8030018 - 15 Aug 2019

Cited by 30 | Viewed by 13428

Abstract

This article explores how care homes—and, specifically, their common features such as dementia care units and locked doors and gates—impact on the human rights of people living with dementia. We suggest that congregation, separation and confinement of people living with dementia by the [...] Read more.

This article explores how care homes—and, specifically, their common features such as dementia care units and locked doors and gates—impact on the human rights of people living with dementia. We suggest that congregation, separation and confinement of people living with dementia by the care home built environment constitute ‘segregation’. In the specific context of residential aged care facilities in Australia, we draw on the United Nations Convention on the Rights of Persons with Disabilities (‘CRPD’) to frame this segregation as an injustice. We focus on the rights to non-discrimination (Article 5), liberty and security of the person (Article 14), equality before the law (Article 12), accessibility (Article 9), and independent living and community inclusion (Article 19). Our analysis shows that addressing segregation must involve structural and resource reforms that are transformative in bringing about new ways of living and relating to each other. Such reforms are directed towards providing meaningful alternatives and appropriate supports to make choices from a range of alternative residency and support options, and building communities that are free from ableism, ageism and other systems of oppression that contribute to confinement and segregation. Full article

15 pages, 274 KiB

Open AccessArticle

Shifting the Balance of Power: The Strategic Use of the CRPD by Disabled People’s Organizations in Securing ‘a Seat at the Table’

by Laufey Löve, Rannveig Traustadóttir and James Rice

Laws 2019, 8(2), 11; https://doi.org/10.3390/laws8020011 - 14 May 2019

Cited by 9 | Viewed by 5832

Abstract

The article highlights how the strategic use of the Convention on the Rights of Persons with Disabilities (CRPD) by disabled people’s organizations (DPOs) in Iceland has produced a shift in the balance of power with regard to how, and by whom, disability legislation [...] Read more.

The article highlights how the strategic use of the Convention on the Rights of Persons with Disabilities (CRPD) by disabled people’s organizations (DPOs) in Iceland has produced a shift in the balance of power with regard to how, and by whom, disability legislation and policy in Iceland is developed. The article draws on a study examining the last stages of a consultative process between representatives of DPOs and policymakers in Iceland leading up to the adoption, in May of 2018, of core disability legislation, Laws pertaining to services for disabled people with long-term support needs (No. 38/2018). It examines the process from the perspective of representatives of DPOs through in-depth interviews and document analysis. This article draws on critical theory and the human rights approach in its analysis, with a particular emphasis on the roadmap to the coproduction of policy provided by the CRPD and the UN CRPD Committee through the issuance of guidance to States Parties to the Convention. It draws attention to the DPOs’ ongoing refocusing of their strategies, and their emphasis on harnessing the rights contained in the CRPD to gain recognition of their right to participation in the coproduction of policy and in changing process norms. Full article

19 pages, 257 KiB

Open AccessEditor’s ChoiceArticle

Supporting Choice and Control—An Analysis of the Approach Taken to Legal Capacity in Australia’s National Disability Insurance Scheme

by Emily Cukalevski

Laws 2019, 8(2), 8; https://doi.org/10.3390/laws8020008 - 27 Mar 2019

Cited by 10 | Viewed by 9978

Abstract

In mid-2013, the Australian federal government introduced the National Disability Insurance Scheme (NDIS), a ground-breaking reform of disability support services, encapsulated by the mantra of increasing “choice and control”. The scheme provides eligible persons with disabilities a legislated entitlement to supports they may [...] Read more.

In mid-2013, the Australian federal government introduced the National Disability Insurance Scheme (NDIS), a ground-breaking reform of disability support services, encapsulated by the mantra of increasing “choice and control”. The scheme provides eligible persons with disabilities a legislated entitlement to supports they may require to increase their independence and social and economic participation. The NDIS has been hailed as a major step forward in Australia’s efforts to realize the human rights of persons with disabilities, in accordance with the UN Convention on the Rights of Persons with Disabilities (CRPD). A core aspect of the CRPD is guaranteeing persons with disabilities their civil and political right to equality before the law, including their right to enjoy legal capacity on an equal basis with others, as provided by Article 12 of the CRPD. The purpose of this paper is to examine how the concept of choice and control has been operationalized within the NDIS and to critically analyze the extent to which it accords with the requirements of Article 12. It will be argued that even though the NDIS expressly seeks to implement the CRPD as one of its key objectives, it ultimately falls short in fully embracing the obligations of Article 12 and the notions of autonomy and personhood underlying it. Full article

22 pages, 286 KiB

Open AccessEditor’s ChoiceArticle

Legal Capacity and Supported Decision-Making: Lessons from Some Recent Legal Reforms

by Antonio Martinez-Pujalte

Laws 2019, 8(1), 4; https://doi.org/10.3390/laws8010004 - 1 Feb 2019

Cited by 21 | Viewed by 9060

Abstract

Article 12 of the Convention on the Rights of Persons with Disabilities calls for a thorough review of State laws to recognise the right of persons with disabilities to enjoy legal capacity on an equal basis with others, thereby abolishing substitute decision-making regimes, [...] Read more.

Article 12 of the Convention on the Rights of Persons with Disabilities calls for a thorough review of State laws to recognise the right of persons with disabilities to enjoy legal capacity on an equal basis with others, thereby abolishing substitute decision-making regimes, and to receive the support they need for its exercise. With the aim of providing useful guidelines for legislative changes yet to be made, the present study examines and assesses, in the light of the Convention, some of the most recent and innovative legislative reforms in the area of legal capacity. The analysis shows that, although they appropriately reflect a change of perspective, shifting from the paradigm of the “best interests” of the person to the respect of their will and preferences, some of these reforms are not fully satisfactory, particularly because they still allow partial or total deprivation of legal capacity for persons with disabilities, and maintain institutions which perpetuate substitute decision-making. However, the recent modification of the Peruvian Civil Code and Civil Procedure Code deserves a highly positive evaluation as the first regulation of legal capacity and supported decision-making substantially compliant with the Convention. Full article

2018

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21 pages, 283 KiB

Open AccessArticle

Models of Disability and Human Rights: Informing the Improvement of Built Environment Accessibility for People with Disability at Neighborhood Scale?

by Mary Ann Jackson

Laws 2018, 7(1), 10; https://doi.org/10.3390/laws7010010 - 8 Mar 2018

Cited by 33 | Viewed by 30311

Abstract

In the 21st century, even with the advent of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), the existing built environment still fails the neighborhood accessibility needs of people with disability. People with disabilities’ human right to the neighborhood [...] Read more.

In the 21st century, even with the advent of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), the existing built environment still fails the neighborhood accessibility needs of people with disability. People with disabilities’ human right to the neighborhood is, at face value, enshrined in legislation and ‘much’ built environment accessibility legislation is in place. But, built environment accessibility practice has been, and continues to be, shaped by a hidden discourse based on theoretical underpinnings little understood by built environment practitioners. Similarly, built environment practitioners have little understanding of either the diversity of the human condition or the accessibility needs of people with disability. In Australia, the operationalization of built environment accessibility rights is, via opaque legislation, not necessarily reflective of the lived experience of people with disability, and weak in terms of built environment spatial coverage. Empirically, little is known about the extent of built environment inaccessibility, particularly neighborhood inaccessibility. Therefore, the question explored in this paper is: How might an understanding of models of disability and human rights inform the improvement of built environment accessibility, for people with disability, at a neighborhood scale? Literature related to disability and human rights theory, built environment accessibility legislation primarily using Australia as an example, and built environment accessibility assessment is drawn together. This paper argues that built environment practitioners must recognize the disabling potency of current built environment practice, that built environment practitioners need to engage directly with people with disability to improve understanding of accessibility needs, and that improved measure, at neighborhood scale, of the extent of existing built environment inaccessibility is required. Full article

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14 pages, 232 KiB

Open AccessFeature PaperArticle

Living on the Global Peripheries of Law: Disability Human Rights Law in Principle and in Practice in the Global South

by Vera Chouinard

Laws 2018, 7(1), 8; https://doi.org/10.3390/laws7010008 - 20 Feb 2018

Cited by 1 | Viewed by 4894

Abstract

This article develops the notion that poorer nations of the Global South are particularly disadvantaged in terms of realizing disabled people's human rights in practice. This is because they are situated in what is termed the global peripheries of law. These are peripheries [...] Read more.

This article develops the notion that poorer nations of the Global South are particularly disadvantaged in terms of realizing disabled people's human rights in practice. This is because they are situated in what is termed the global peripheries of law. These are peripheries in which very limited human and financial resources are available to practically realize disability human rights (reflecting processes such as the outmigration of trained professionals, devaluation of currency as a condition of debt repayment, and dependence on agricultural exports and imports of expensive manufactured goods, including medicine, from the Global North). Being on the global peripheries of law also reflects legacies of colonial and neo-colonial violence and oppression in an unequal global capitalist order, such as ongoing and widespread violence against women and unsafe working conditions—both of which result in death and the geographically uneven production of impairment. This uneven production of impairment also needs to be considered as an important part of understanding disability human rights law in a global context. Following a brief overview of the U.N. convention on the human rights of disabled people and the U.N. Covenant on Economic, Social and Cultural Rights to provide a global legal context and of the Inter-American Human Rights System to provide a regional legal context, the article illustrates why it is so difficult to realize disabled people's human rights in practice in the Global South, through a case study of Guyana. Full article

17 pages, 264 KiB

Open AccessEditor’s ChoiceArticle

Reconsidering Sheltered Workshops in Light of the United Nations Convention on the Rights of Persons with Disabilities (2006)

by Charlotte May-Simera

Laws 2018, 7(1), 6; https://doi.org/10.3390/laws7010006 - 5 Feb 2018

Cited by 3 | Viewed by 7512

Abstract

Sheltered work and related practices remain a prevalent service for people with intellectual disabilities. However, as a result of being placed in these, participants overwhelmingly remain segregated and excluded from their wider communities. This paper explores whether, with the advent of the United [...] Read more.

Sheltered work and related practices remain a prevalent service for people with intellectual disabilities. However, as a result of being placed in these, participants overwhelmingly remain segregated and excluded from their wider communities. This paper explores whether, with the advent of the United Nations Convention on the Rights of Persons with Disabilities, we can at least begin to assess the equality implications of such placements and argue that the experience of segregation itself represents numerous rights violations and discrimination. Having considered traditional equality mechanisms and their bearing on people with intellectual disabilities, this discussion explores how far the Convention’s re-envisioning of the basic principles of equality can perhaps provide a more promising outlook and ideological stance. Indeed, during the Convention’s inception, the negotiations circled around the conflicting opinions as to the purpose, usefulness, and future of sheltered work, revealing the existing tensions between protection and autonomy, shrouding all disability policy discussions. As a result, the question of sheltered work is not explicitly addressed in the treaty and the Committee on the Rights of Persons with Disabilities have been unable to definitively declare that the practice of sheltered work constitutes an act of discrimination. However, the Committee does as times demand that sheltered workshops be phased out where it is obvious that the practice of sheltered work is directly linked to the exploitation of workers. Moreover, certain provisions in the Convention might help in determining wrongful discrimination in some, if limited, instances. Full article

26 pages, 309 KiB

Open AccessFeature PaperEditor’s ChoiceArticle

Freedom of Opinion and Expression: From the Perspective of Psychosocial Disability and Madness

by Fleur Beaupert

Laws 2018, 7(1), 3; https://doi.org/10.3390/laws7010003 - 4 Jan 2018

Cited by 10 | Viewed by 9286

Abstract

This article argues that civil mental health laws operate to constrict how people think, understand, and speak about psychosocial disability, madness, and mental distress. It does so with reference to views and experiences of mental health service users and psychiatric survivors (users and [...] Read more.

This article argues that civil mental health laws operate to constrict how people think, understand, and speak about psychosocial disability, madness, and mental distress. It does so with reference to views and experiences of mental health service users and psychiatric survivors (users and survivors) and their/our accounts of disability, madness, and distress, such as those articulated by the emerging field of Mad studies. The analysis considers the application of the rights to freedom of opinion and expression that are enshrined in the International Covenant on Civil and Political Rights and other international human rights instruments to the mental health context. The article explores the suppression of freedom of opinion and expression that is effected through the symbolic violence of psychiatry and the mental health paradigm. Focusing on Australian legal frameworks, the article discusses how the material violence and coercion characterising mental health laws compound this process. It is further argued that civil mental health laws, by codifying the tenets of psychiatry and the mental health paradigm so as to render them largely unassailable, validate the ontological nullification of users and survivors. The foregoing analysis exposes dangers of adopting a functional test of mental capacity as the pre-eminent legal standard for authorising involuntary mental health interventions. It is suggested that considering freedom of opinion and expression from the perspective of psychosocial disability and madness reinforces the Committee on the Rights of Persons with Disabilities’ interpretation that such interventions are incompatible with international human rights standards. Full article

2017

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248 KiB

Open AccessArticle

Unveiling the Challenges in the Implementation of Article 24 CRPD on the Right to Inclusive Education. A Case-Study from Italy

by Delia Ferri

Laws 2018, 7(1), 1; https://doi.org/10.3390/laws7010001 - 25 Dec 2017

Cited by 3 | Viewed by 8012

Abstract

Since the 1970s, Italy has undertaken a process of inclusion of children with disabilities in mainstream schools, has implemented an anti-discriminatory educational policy, and abandoned segregated educational practices. In September 2014, the Italian Government initiated a process of “modernization” of the whole educational [...] Read more.

Since the 1970s, Italy has undertaken a process of inclusion of children with disabilities in mainstream schools, has implemented an anti-discriminatory educational policy, and abandoned segregated educational practices. In September 2014, the Italian Government initiated a process of “modernization” of the whole educational system, and attempted to fully align domestic legislation with the wide-ranging obligations enshrined in Article 24 CRPD. Law No. 107/2015 on the reform of the educational system empowered the Government to adopt legislative decrees to promote inter alia an effective and inclusive education for persons with disabilities. After a long and somewhat troubled process, a legislative decree on inclusive education was finally adopted in April 2017. This article, building upon previous research, critically discusses the innovations brought by this recent reform, situating them in the broader Italian legislative framework on the rights of people with disabilities. By focusing on Italy as a case-study, this article aims to reflect on the challenges surrounding the creation of an inclusionary educational system that goes beyond a mere integration in mainstream schools and ensures full and effective participation of all learners, meeting the standards imposed by Article 24 CRPD. Full article

263 KiB

Open AccessArticle

The Inclusion of the Lived Experience of Disability in Policymaking

by Laufey Löve, Rannveig Traustadóttir, Gerard Quinn and James Rice

Laws 2017, 6(4), 33; https://doi.org/10.3390/laws6040033 - 20 Dec 2017

Cited by 15 | Viewed by 8650

Abstract

This paper examines the process under way in Iceland to align national law with the UN Convention on the Rights of Persons with Disabilities, focusing on the Convention’s call for the active involvement of disabled people and their representative organizations in policy and [...] Read more.

This paper examines the process under way in Iceland to align national law with the UN Convention on the Rights of Persons with Disabilities, focusing on the Convention’s call for the active involvement of disabled people and their representative organizations in policy and decision making on matters that affect them. The paper draws on comments submitted by Icelandic DPOs on draft legislation intended to replace the existing law on services for disabled people, focusing on comments relating to their ability to participate in and affect the policymaking process. Furthermore, it draws on interviews with leaders of representative organizations of disabled people that solicited their views on the issue. The findings indicate that there is a reluctance on behalf of Icelandic authorities to make changes to the established process, which limits the active participation of disabled people and their representative organizations. The draft legislation has neither been revised to include provisions for expanding the participation of DPOs in policy and decision making, nor to ensure that disabled people themselves participate in the process. Full article

281 KiB

Open AccessFeature PaperArticle

“More Honoured in the Breach than in the Observance”—Self-Advocacy and Human Rights

by Gabor Petri, Julie Beadle-Brown and Jill Bradshaw

Laws 2017, 6(4), 26; https://doi.org/10.3390/laws6040026 - 16 Nov 2017

Cited by 15 | Viewed by 9946

Abstract

Background: Since the adoption of the UN Convention on the Rights of Persons with Disabilities (CRPD), human rights have become central for disability advocacy. The CRPD requires that disabled people and their representative organisations (DPOs) have a prominent role in the implementation and [...] Read more.

Background: Since the adoption of the UN Convention on the Rights of Persons with Disabilities (CRPD), human rights have become central for disability advocacy. The CRPD requires that disabled people and their representative organisations (DPOs) have a prominent role in the implementation and monitoring of the Convention. However, the representation of people with intellectual disabilities or autistic people is still often indirect, carried out by parents or professionals. Methods: This is a qualitative research which looks at how self-advocates (SAs) with intellectual disabilities or autism participate in DPOs and how they see the role of human rights and laws such as the CRPD in their advocacy. Data was collected in the UK and in Hungary between October 2016 and May 2017. A total of 43 advocates (SAs and other advocates) were interviewed. For the analysis, thematic analysis was used. Results: findings indicate that most participants have limited knowledge of the CRPD and human rights. Human rights are usually seen as vague and distant ideas, less relevant to everyday lives. SAs may not feel competent to talk about the CRPD. The inclusion of SAs in DPOs is mostly tokenistic, lacking real participation. Conclusions: The CRPD can only bring meaningful change to SAs if they get full membership in DPOs. Full article

224 KiB

Open AccessFeature PaperArticle

Prioritising Supported Decision-Making: Running on Empty or a Basis for Glacial-To-Steady Progress?

by Terry Carney

Laws 2017, 6(4), 18; https://doi.org/10.3390/laws6040018 - 12 Oct 2017

Cited by 8 | Viewed by 5231

Abstract

Honouring the requirement of the Convention on the Rights of Persons with Disabilities to introduce supported decision-making (SD) has largely been a case of much talk and little real action. As a socio-economic right, actualising support is resource-intensive as well as being fairly [...] Read more.

Honouring the requirement of the Convention on the Rights of Persons with Disabilities to introduce supported decision-making (SD) has largely been a case of much talk and little real action. As a socio-economic right, actualising support is resource-intensive as well as being fairly uncharted territory in terms of what works, to what degree and for how long benefits last. This paper, drawing lightly on mainly Australian examples, considers unexplored (and sometimes unorthodox) approaches such as the ‘needs-based’ principle for setting social welfare priorities as possible ways of revitalising SD through progressive realisation, whether through civil society programs or under the law. It argues that pure repeal of proxy decision-making on its own is not viable in realpolitik terms so progressive realisation of ‘repeal with adequate support’ must instead be devised for SD implementation to progress. Full article

282 KiB

Open AccessArticle

Some Parents Are More Equal than Others: Discrimination against People with Disabilities under Adoption Law

by Blake Connell

Laws 2017, 6(3), 15; https://doi.org/10.3390/laws6030015 - 23 Aug 2017

Cited by 2 | Viewed by 7050

Abstract

Article 23 of the Convention on the Rights of Persons with Disabilities (CRPD) explicitly includes ‘the adoption of children’ as a right to which people with disabilities are equally entitled. Despite the CRPD having been in force for over nine years, research is [...] Read more.

Article 23 of the Convention on the Rights of Persons with Disabilities (CRPD) explicitly includes ‘the adoption of children’ as a right to which people with disabilities are equally entitled. Despite the CRPD having been in force for over nine years, research is yet to consider whether CRPD signatory states have brought their respective adoption regimes in line with their obligations under art 23 of the CRPD. Using the laws of the Australian state of Victoria by way of case study, this article aims to shed light on the difficulties people with disabilities still face when attempting to adopt children. In terms of methodology, this article conducts an interpretive critique of Victoria’s adoption law against art 23 of the CRPD, which it interprets mainly through the lens of the social model of disability. Ultimately, this article finds that Victoria’s adoption framework closely resembles the adoption regimes of many other CRPD signatories, yet it clearly fails to uphold Australia’s obligations under the CRPD. This is both as a result of the words of the legislation as well as their implementation in practice. This article proposes a suite of changes, both legislative and cultural, to bring Victoria’s adoption framework in line with art 23, which it hopes will serve as a catalyst for change in other CRPD signatory states. Full article

217 KiB

Open AccessArticle

Protection for Privacy under the United Nations Convention on the Rights of Persons with Disabilities

by Mark C. Weber

Laws 2017, 6(3), 10; https://doi.org/10.3390/laws6030010 - 7 Aug 2017

Viewed by 9508

Abstract

Article 22 of the Convention on the Rights of Persons with Disabilities (CRPD) protects personal and family privacy and reputation. This paper examines the antecedents of the CRPD privacy article in other international instruments and selected domestic law. It traces the history of [...] Read more.

Article 22 of the Convention on the Rights of Persons with Disabilities (CRPD) protects personal and family privacy and reputation. This paper examines the antecedents of the CRPD privacy article in other international instruments and selected domestic law. It traces the history of the article through the deliberations that led up to the final version of the CRPD, which has now been ratified by 173 nations. It analyzes the text of the article and discusses its limited administrative and judicial applications. Finally, it describes the article’s place in current thinking about disability human rights. Full article

280 KiB

Open AccessFeature PaperArticle

Drawing the Line: Disability, Genetic Intervention and Bioethics

by Adam Conti

Laws 2017, 6(3), 9; https://doi.org/10.3390/laws6030009 - 17 Jul 2017

Cited by 1 | Viewed by 8836

Abstract

Meteoric scientific advances in genetic technologies with the potential for human gene editing intervention pose tremendous legal, medical, social, ethical and moral issues for society as a whole. Persons with disabilities in particular have a significant stake in determining how these technologies are [...] Read more.

Meteoric scientific advances in genetic technologies with the potential for human gene editing intervention pose tremendous legal, medical, social, ethical and moral issues for society as a whole. Persons with disabilities in particular have a significant stake in determining how these technologies are governed at the international, domestic and individual levels in the future. However, the law cannot easily keep up with the rate of scientific progression. This paper aims to posit a methodology of reform, based on a core value of human dignity, as the optimal course of action to ensure that the interests of persons with disabilities, other possibly marginalised groups, and the scientific community, are balanced fairly. The paper critically analyses the current law and varying bioethical perspectives to ultimately conclude that a clear principled approach toward open discussion and consensus is of paramount importance to have any chance of devising an effective regulatory regime over human gene editing technology. Full article

237 KiB

Open AccessFeature PaperArticle

Victims of Violence: The Forced Sterilisation of Women and Girls with Disabilities in Australia

by Laura Elliott

Laws 2017, 6(3), 8; https://doi.org/10.3390/laws6030008 - 4 Jul 2017

Cited by 5 | Viewed by 17949

Abstract

This paper considers the issue of forced sterilisation of women and girls with disabilities in the Australian context. It examines the history and ideological underpinning of this practice, the current Australian regime and the present rationales for court or tribunal authorisation of a [...] Read more.

This paper considers the issue of forced sterilisation of women and girls with disabilities in the Australian context. It examines the history and ideological underpinning of this practice, the current Australian regime and the present rationales for court or tribunal authorisation of a sterilising procedure. It is by no means an exhaustive coverage, but aims to critically analyse the current system and make recommendations for reform of Australian law and policy. This paper ultimately concludes that the practice of forced sterilisation in Australia should be criminalised, save for exceptional circumstances. Full article

2016

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230 KiB

Open AccessArticle

Harmonisation and Cross-Fertilisation of Socio-Economic Rights in the Human Rights Treaty Bodies: Disability and the Reasonableness Review Case Study

by Andrea Broderick

Laws 2016, 5(4), 38; https://doi.org/10.3390/laws5040038 - 25 Sep 2016

Cited by 2 | Viewed by 5444

Abstract

In light of the recent adoption of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OP-ICESCR) and the Optional Protocol to the Convention on the Rights of Persons with Disabilities (OP-CRPD), there is a necessity for harmonisation among [...] Read more.

In light of the recent adoption of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OP-ICESCR) and the Optional Protocol to the Convention on the Rights of Persons with Disabilities (OP-CRPD), there is a necessity for harmonisation among the treaty bodies, particularly in the area of socio-economic rights. The equality norm in the CRPD, including the duty to reasonably accommodate, is an important facilitator of socio-economic rights. This article sets forth the opportunities for cross-fertilisation of socio-economic rights, and disability rights in particular, at the level of international human rights law and beyond, as well as the potential that exists for social change at the domestic level. The CRPD Committee and the United Nations Committee on Economic, Social and Cultural Rights (UNCESCR) will undertake the task of assessing measures adopted by States related to alleged violations under the optional protocols and will determine compliance with treaty obligations under the State reporting procedure. In that regard, a framework of “reasonableness review” is proposed, which could provide the opportunity to merge individual rights’ violations with broader issues of socio-economic inequalities and could also lead to coherent implementation of the normative content of socio-economic rights at the domestic level. Full article

262 KiB

Open AccessFeature PaperArticle

Disability in a Human Rights Context

by Theresia Degener

Laws 2016, 5(3), 35; https://doi.org/10.3390/laws5030035 - 25 Aug 2016

Cited by 128 | Viewed by 45455

Abstract

The Convention on the Rights of Persons with Disabilities (CRPD) is a modern human rights treaty with innovative components. It impacts on disability studies as well as human rights law. Two innovations are scrutinized in this article: the model of disability and the [...] Read more.

The Convention on the Rights of Persons with Disabilities (CRPD) is a modern human rights treaty with innovative components. It impacts on disability studies as well as human rights law. Two innovations are scrutinized in this article: the model of disability and the equality and discrimination concepts of the CRPD. It is argued that the CRPD manifests a shift from the medical model to the human rights model of disability. Six propositions are offered why and how the human rights model differs from the social model of disability. It is further maintained that the CRPD introduces a new definition of discrimination into international public law. The underlying equality concept can be categorized as transformative equality with both individual and group oriented components. The applied methodology of this research is legal doctrinal analysis and disability studies model analysis. The main finding is that the human rights model of disability improves the social model of disability. Three different models of disability can be attributed to different concepts of equality. The medical model corresponds with formal equality, while the social model with substantive equality and the human rights model can be linked with transformative equality. Full article

214 KiB

Open AccessArticle

Strengthening the Voice of Persons with Mental Health Problems in Legal Capacity Proceedings

by Marie Fallon-Kund and Jerome Bickenbach

Laws 2016, 5(3), 29; https://doi.org/10.3390/laws5030029 - 29 Jun 2016

Cited by 2 | Viewed by 5839

Abstract

Despite the standards set out by the United Nations Convention on the Rights of Persons with Disabilities (CRPD), states are reluctant to put an end to substitute decision-making regimes all at once. Persons with mental health problems are particularly affected by such regimes [...] Read more.

Despite the standards set out by the United Nations Convention on the Rights of Persons with Disabilities (CRPD), states are reluctant to put an end to substitute decision-making regimes all at once. Persons with mental health problems are particularly affected by such regimes that are instituted by independent authorities through legal capacity proceedings. In order to allow the person to express their will and preferences throughout the proceedings, the right to be heard is of primary importance for the person concerned. The objective of this paper is to review the essential support mechanisms as well as procedural accommodations for the implementation of an equal and effective right to be heard for persons with mental health problems. Fulfilling the right to be heard in legal capacity proceedings is a step towards more individualized regimes that promote the autonomy of the person. Full article

173 KiB

Open AccessArticle

Uneasy Bedfellows: Social Justice and Neo-Liberal Practice in the Housing Market

by Andrew Martel

Laws 2016, 5(2), 26; https://doi.org/10.3390/laws5020026 - 13 Jun 2016

Viewed by 4218

Abstract

The Australian state has ratified the Convention on the Rights of Persons with Disabilities (CRPD), which emphasizes a social justice-based, personalized service delivery model. The upcoming National Disability Insurance Scheme (NDIS) reflects this model and aims to facilitate people living with a disability [...] Read more.

The Australian state has ratified the Convention on the Rights of Persons with Disabilities (CRPD), which emphasizes a social justice-based, personalized service delivery model. The upcoming National Disability Insurance Scheme (NDIS) reflects this model and aims to facilitate people living with a disability being able to access services while housed within the private residential market, a move away from a state-based combined residential/service care model. However, in Australia’s neo-liberal housing market government intervention tends to shy away from policies that overtly impose restrictions on private firms. Therefore, in the absence of a subsidy from the state, the CRPD is of limited use in encouraging private developers to improve the appropriateness of its new built stock for people with a disability. A more persuasive approach is to highlight the size, diversity, and economic power of the disability-friendly housing consumer market when housing provision is separated from disability care delivery. This paper examines the feasibility of sustaining innovation in the volume builder housing market by aligning accessibility promoting changes to the existing innovation channels within Australian firms, suggesting that the NDIS concentrate on assisting the housing industry transition to a make-to-order model from the current make-to-forecast one. Full article

217 KiB

Open AccessArticle

Are Cutbacks to Personal Assistance Violating Sweden’s Obligations under the UN Convention on the Rights of Persons with Disabilities?

by Ciara Brennan, Rannveig Traustadóttir, Peter Anderberg and James Rice

Laws 2016, 5(2), 23; https://doi.org/10.3390/laws5020023 - 16 May 2016

Cited by 19 | Viewed by 9690

Abstract

Article 19 of the UN Convention on the Rights of Persons with Disabilities requires states to ensure that disabled people can choose where and with whom they live with access to a range of services including personal assistance. Based on qualitative research of [...] Read more.

Article 19 of the UN Convention on the Rights of Persons with Disabilities requires states to ensure that disabled people can choose where and with whom they live with access to a range of services including personal assistance. Based on qualitative research of the implementation of Article 19 in Nordic countries, this paper focuses on Sweden, which was at the forefront of implementing personal assistance law and policy and has been the inspiration for many European countries. Instead of strengthening access to personal assistance, this study found that since the Swedish government ratified the Convention in 2008, there has been an increase in the numbers of people losing state-funded personal assistance and an increase in rejected applications. This paper examines the reasons for the deterioration of eligibility criteria for accessing personal assistance in Sweden. The findings shed light on how legal and administrative interpretations of “basic needs” are shifting from a social to a medical understanding. They also highlight a shift from collaborative policy making towards conflict, where courts have become the battleground for defining eligibility criteria. Drawing on the findings, we ask if Sweden is violating its obligations under the Convention. Full article

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Open AccessOpinion

A Word of Caution: Human Rights, Disability, and Implementation of the Post-2015 Sustainable Development Goals

by Claire E. Brolan

Laws 2016, 5(2), 22; https://doi.org/10.3390/laws5020022 - 14 May 2016

Cited by 7 | Viewed by 10168

Abstract

On 25 September 2015, the United Nations (UN) General Assembly unanimously voted for the post-2015 UN resolution on the post-2015 Sustainable Development Goal (SDG) agenda. This article argues that although the post-2015 SDG agenda is an advance on its precursor the Millennium Development [...] Read more.

On 25 September 2015, the United Nations (UN) General Assembly unanimously voted for the post-2015 UN resolution on the post-2015 Sustainable Development Goal (SDG) agenda. This article argues that although the post-2015 SDG agenda is an advance on its precursor the Millennium Development Goals (MDGs)—especially for progressing the human rights of persons with disabilities in development settings, everywhere—it should nonetheless be approached with caution. This article will identify “three steps forward” for persons with disabilities within the broad content of the post-2015 SDGs, while also highlighting four potential “steps back”. It concludes persons with disabilities, disability rights advocates and their supporters must remain vigilant as the post-SDG UN resolution is now operationalised and implemented by UN Member States and their many partners. This is particularly so if the content of the Convention on the Rights of Persons with Disabilities is to be effectively integrated into the post-2015 development policy and planning landscape. Full article

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Open AccessArticle

NGO-Ization and Human Rights Law: The CRPD’s Civil Society Mandate

by Stephen Meyers

Laws 2016, 5(2), 21; https://doi.org/10.3390/laws5020021 - 11 May 2016

Cited by 13 | Viewed by 8411

Abstract

The Convention on the Rights of Persons with Disabilities (CRPD) is unique among international human rights instruments for including a “civil society mandate”. Within the convention, disabled persons organizations (DPOs) are identified as having the responsibility to “be involved and participate fully in [...] Read more.

The Convention on the Rights of Persons with Disabilities (CRPD) is unique among international human rights instruments for including a “civil society mandate”. Within the convention, disabled persons organizations (DPOs) are identified as having the responsibility to “be involved and participate fully in the monitoring process” of the CRPD. In response to this mandate, international funders, NGOs (non-governmental organizations), and networks committed to the CPRD have begun to implement capacity-building programs that target grassroots DPOs with the goal of ensuring they become advocates and monitors of the CRPD. While the goals of these capacity-building programs are admirable, they must be critically assessed. The NGO-ization theory within development studies offers a framework for analyzing the potential unintended consequences of donors providing new funding, NGOs providing training, and global networks integrating local partners. NGO-ization studies have identified how grassroots associations are co-opted by outside actors through formalization and professionalization processes that significantly alter local groups and alienate members, thus making those associations less representative and less responsive to local needs and interests. Human rights scholars and international organizations focused on the CRPD should incorporate an NGO-ization perspective into their research and project-implementation to ensure that grassroots voices are heard and local needs addressed. Full article

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Open AccessArticle

Can International Human Rights Law Help Restore Access to Justice for Disabled Workers?

by Rupert Harwood

Laws 2016, 5(2), 17; https://doi.org/10.3390/laws5020017 - 6 Apr 2016

Cited by 2 | Viewed by 6874

Abstract

The research literature indicates that legislative changes in recent years, including the introduction of tribunal fees, have made it harder for workers in general to enforce their rights under UK employment laws. Drawing on the author’s qualitative study, conducted in 2015 and with [...] Read more.

The research literature indicates that legislative changes in recent years, including the introduction of tribunal fees, have made it harder for workers in general to enforce their rights under UK employment laws. Drawing on the author’s qualitative study, conducted in 2015 and with information from 265 participants, this paper finds that these legislative changes could be having disproportionate adverse impacts on disabled workers. Of particular note, fees had deterred substantial numbers from submitting discrimination claims; and it appeared that this reluctance to take legal action had in turn emboldened some employers to commit what might have been found to constitute unlawful acts if taken to tribunal. The paper goes onto consider whether these adverse impacts on disabled workers could render fees unlawful under UK and European equality and human rights law and/or could entail violations of rights under the United Nations Convention on the Rights of Persons with Disabilities. The paper concludes that the intent behind UK laws might (in relation to the lawfulness of fees) have been frustrated in the domestic courts and that the impact of any future successes in the domestic courts, or under international law, might be dependent upon public opinion and political expediency. The paper also briefly compares developments in Britain with developments in neighbouring and other comparable jurisdictions. Full article

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Open AccessArticle

Germany without Coercive Treatment in Psychiatry—A 15 Month Real World Experience

by Martin Zinkler

Laws 2016, 5(1), 15; https://doi.org/10.3390/laws5010015 - 17 Mar 2016

Cited by 11 | Viewed by 15325

Abstract

Coercive treatment with antipsychotic drugs was commonly used in German psychiatric institutions until it became a topic of substantial medical, legal and ethical controversy. In 2011 and 2012, several landmark decisions by Germany’s Constitutional Court and Federal Supreme Court challenged this practice in [...] Read more.

Coercive treatment with antipsychotic drugs was commonly used in German psychiatric institutions until it became a topic of substantial medical, legal and ethical controversy. In 2011 and 2012, several landmark decisions by Germany’s Constitutional Court and Federal Supreme Court challenged this practice in all but life-threatening emergencies. In March 2013, the new legal provisions governing coercive treatment took effect allowing coercive medication under stricter criteria. While mainstream psychiatry in Germany resumed the use of coercive medication, although less frequently than before 2012, there are examples where clinicians put an even greater emphasis on consensual treatment and did not return to coercive treatment. Data from a case study in a local mental health service suggest that the use of coercive medication could be made obsolete. Full article

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Open AccessArticle

Legal Capacity and Access to Justice: The Right to Participation in the CRPD

by Penelope Weller

Laws 2016, 5(1), 13; https://doi.org/10.3390/laws5010013 - 8 Mar 2016

Cited by 4 | Viewed by 6669

Abstract

This article provides an applied analysis of Article 12 (Equal recognition before the law) of the Convention on the Rights of Persons with Disabilities (CRPD) and Article 13 (Access to justice) in the context of Article 6 (Women with disabilities). Recent literature on [...] Read more.

This article provides an applied analysis of Article 12 (Equal recognition before the law) of the Convention on the Rights of Persons with Disabilities (CRPD) and Article 13 (Access to justice) in the context of Article 6 (Women with disabilities). Recent literature on the CRPD has extended the analysis of Article 12 to consider its broader relevance for the interpretation of Article 13. The interaction between Article 12 and Article 13 is an emerging issue in CRPD debates. This article argues that the CRPD must be interpreted in light of current human rights theory. It provides a case study of the interaction between Article 12 and Article 13 based on the facts recited in the Court of Appeal case in the United Kingdom (RP v Nottingham City Council (2008)) and RP’s petition to the European Court of Human Rights (RP and Others v United Kingdom (2012)). The analysis shows that CRPD principles could and should have been applied in RP’s case. It concludes that current practices excluding people with disabilities from participation in legal proceedings are contrary to the CRPD. Full article

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Open AccessArticle

Assumptions of Decision-Making Capacity: The Role Supporter Attitudes Play in the Realisation of Article 12 for People with Severe or Profound Intellectual Disability

by Joanne Watson

Laws 2016, 5(1), 6; https://doi.org/10.3390/laws5010006 - 19 Feb 2016

Cited by 33 | Viewed by 10345

Abstract

The United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) was the first legally binding instrument explicitly focused on how human rights apply to people with disability. Amongst their obligations, consistent with the social model of disability, the Convention requires signatory [...] Read more.

The United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) was the first legally binding instrument explicitly focused on how human rights apply to people with disability. Amongst their obligations, consistent with the social model of disability, the Convention requires signatory nations to recognise that “…persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life” and mandates signatory nations to develop “…appropriate measures to provide access by persons with disability to the support they may require in exercising their legal capacity”. The Convention promotes supported decision-making as one such measure. Although Australia ratified the UNCRPD in 2008, it retains an interpretative declaration in relation to Article 12 (2, 3, 4), allowing for the use of substituted decision-making in situations where a person is assessed as having no or limited decision-making capacity. Such an outcome is common for people with severe or profound intellectual disability because the assessments they are subjected to are focused on their cognition and generally fail to take into account the interdependent nature of human decision-making. This paper argues that Australia’s interpretative declaration is not in the spirit of the Convention nor the social model of disability on which it is based. It starts from the premise that the intention of Article 12 is to be inclusive of all signatory nations’ citizens, including those with severe or profound cognitive disability. From this premise, arises a practical need to understand how supported decision-making can be used with this group. Drawing from evidence from an empirical study with five people with severe or profound intellectual disability, this paper provides a rare glimpse on what supported decision-making can look like for people with severe or profound intellectual disability. Additionally, it describes the importance of supporters having positive assumptions of decision-making capacity as a factor affecting supported decision-making. This commentary aims to give a focus for practice and policy efforts for ensuring people with severe or profound cognitive disability receive appropriate support in decision-making, a clear obligation of signatory nations of the UNCRPD. A focus on changing supporter attitudes rather than placing the onus of change on people with disability is consistent with the social model of disability, a key driver of the UNCRPD. Full article

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