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Back to: Third Session of the Ad Hoc Committee
Daily summary of discussions
Daily
summary of discussions related to Article 21
RIGHT TO HEALTH AND REHABILITATION
UN Convention on the Rights of People with Disabilities
Third session of the Ad Hoc Committee - Daily Summary
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Volume 4, #6
June 1, 2004
Afternoon Session
Commenced: 3:05 PM
Adjourned: 5:57 PM
Philippines proposed inserting after “States Parties
recognize that,” the phrase “the promotion of health and the prevention
of disabilities is an immutable and essential responsibility of all
health care systems”. 21(j) should be changed to read: “Ensure that
free and informed consent is given only after the person concerned has
been told of the nature, consequence and risks of the health intervention
in the language understandable to the specific PWD and/or their immediate
families and recognized guardians.”
Israel recommended splitting this Article and circulated
a draft 21(bis) on the separate right to rehabilitation. All references
to rehabilitation should be deleted from this Article, which should
focus on the right to healthcare.
India circulated a draft splitting this Article into
a right to health and a right to rehabilitation. All references to rehabilitation
should be deleted from this Article. A new article, 21(bis) should be
created reflecting the fact that rehabilitation is unique to PWD, based
on a social rather than medical model. This approach is in accordance
with Rule 3 of the Standard Rules.
Ireland proposed that Article 21 be limited to medical
rehabilitation only and that other kinds of rehabilitation be addressed
in other articles such as the right to work or a separate article. Because
there is no general right to health in international instruments, just
the highest attainable standard of health, the title should be changed
to “Access to healthcare and medical rehabilitation.” The EU does not
support references to prevention because this Convention should address
disability, not the occurrence of disability. It proposed deleting 21(d)
and dealing with it in Article 12. 21(e), 21(f), and 21(g) should be
deleted because they are addressed in other places. 21(h), (i ), and
(j) should be replaced by the following: “Promoting quality public and
private healthcare that respects the human rights of persons with disabilities
and ensuring that health and rehabilitation professionals are aware
of, and respect, the rights, dignity and needs of persons with disabilities.”
21(k) should be moved to Article 12 and 21(l) and (m) should be deleted.
Bahrain supported both Israel and India’s proposal.
It proposed to add “involvement of organizations and establishments
whose interest is to support research and spreading knowledge and awareness
of preventive services” at the end of 21(f). In addition, it would add
a new paragraph to address “those with severe disabilities.”
Costa Rica proposed to replace “without discrimination
on the basis of disability” with “on an equal basis and considering
human diversity.” In 21(b), it proposed adding “needed and requested”
before “by PWD. In 21(c), after “assistive technologies,” add “, as
appropriate” and a sentence should be added: “including domestic services
and community based rehabilitation (CBR).” The translation in 21(g)
the term “sufficient” is too ambiguous, so it suggested deletion. In
21(k), the Spanish translation states “medical treatment”, instead of
“medical interventions” which is preferred.
China proposed to amend the first part of 21(k) to
read: “ensure medical and related interventions are in the best interest
of PWD, and prevent unwanted medical and related interventions unless
exceptional circumstances in accordance with the procedure established
by law and with the application of appropriate legal safeguards.”
Chile supports separate health and rehabilitation
articles. There should be an obligation to provide CBR. It suggested
a focus on prevention is important and it is a right. Secondary disabilities
must be prevented as well as degradation of primary disabilities into
secondary disabilities. People should be given information about genetically
transmitted disabilities. 21(k) needs to drafted in a positive way;
medical and related interventions should require the consent of the
PWD or guardian. Health insurance needs to be provided on an equal basis
and cover the cost for private coverage. Genetic, scientific, and medical
research should be included.
Namibia supported separate articles and the EU proposal.
In 21(b), “strive” should be replaced with “ensure.” It proposed changing
21(b) to read: “Develop understanding of disability rights, respect
for diversity, non discriminatory attitudes and a realistic perception
of the capacities of persons with disabilities as users of health services
for health professionals at all levels, in line with the principles
of this convention.” It proposed 21 (i ) and (m) be combined to read:
“Involve persons with disabilities and their representative organizations
in the development and monitoring of health policies and of a code of
ethics for public and private health care in promoting quality, transparency
and respect for human rights at the national level.” In 21(c), it proposed
to add: “rehabilitation services as close as possible to people’s own
communities.” 21(d) should be changed to: “Ensure that respect is afforded
to persons with disabilities to give consent to or refuse medical interventions
of all kinds, in accordance with their evolving capacities. 21(e)’s
proposed language is “Provide programmes and services to prevent and
protect against disabilities, including among children and the elderly.”
Text in 21(d) (bis) should be changed to “Ensure appropriate training
and support of sufficient number of rehabilitation.” The new Article
21 (bis) should be re-titled “Right to CBR” because medical rehabilitation
and CBR are different. “PWD have the right to representation State parties
shall ensure that PWD not be deprived of that right. It shall take all
appropriate measures to ensure that PWD have rehabilitation services.
In particular state parties shall (a) endeavor to provide rehabilitation
services within the community based on the principles of CBR.” It proposed
to add “benefit PWD in consultation with PWD.”
Japan proposed in the chapeau, in the second half
of first sentence, after the word “and,” deleting “shall” and adding
“for that purpose.” To cohere with ICESCR 12 (d), “to ensure access”
in the chapeau should be replaced with “to create conditions which would
assure to all persons with disabilities health and rehabilitation services.”
In 20(j), add after “consent,” “or with the application of other relevant
legal safeguards” for exceptional cases.
Kenya supported India and Israel. Rehabilitation is
a means to independent living and not a health issue.
Guatemala also supported separation into two articles.
In 21(a), it proposed adding “and information related to the health
services,” after “rehabilitation services.” Prevention should be included
in health care and should not be in rehabilitation.
South Africa supported the EU’s position on the title,
“access to health care” and deleting rehabilitation because rehabilitation
is not only medical. The latter half of 21 (a) should read ”…. health,
rehabilitation, as well as sexual and reproductive services.” In 21(b),
change “strive” to “provide,” and add “achieve the progressive realization
of disability specific.” It proposed deleting “safe” in 21(d) because
it is in Article 12 and to add 21(d) (bis): “Endeavour to support facilities
that are in the ownership or managed by persons with disabilities” to
encourage PWD and peer counseling. In 21(h), it proposed to delete “and
rehabilitation.” It proposed deleting 21(l) since Article 6 addresses
privacy.
Morocco proposed in 21(e), delete “secondary” to keep
prevention broad. In 21(g), at the end, add “continued,” before training.
After “safeguards” in 21(j), add “or their guardian or legal representative.”
Yemen proposed changing the title in 21(bis) to: “Right
to habilitation and rehabilitation”; Article 21 title could be right
to health or healthcare. In the chapeau, add “free,” after “standard
of health.”
Canada supported separated articles and agreed with
EU adding “medical” before “rehabilitation,” because there are other
forms of rehabilitation that can be addressed elsewhere, or it could
support a stand-alone Article. In 21(a), change “citizens” to “to others.”
21(d) is too detailed and prescriptive and should be deleted; respite
care should be placed in another article such as social security. 21(e),
(k), and (l) should be deleted. New technologies are addressed in 13(d)
and 20(c) so 21(f) should be deleted. It proposed deleting 21(g) and
21(i). Its proposed language for 21(h) is “Promote the appropriate education
and training of all health and rehabilitation professionals to increase
their disability-sensitive awareness and respect for the rights, dignity
and needs of persons with disabilities.” 21(j)’s reference to privacy
has already been addressed in article 14 and consent to treatment could
be addressed in Article 12 or Article 9- therefore this subpara should
be deleted. Likewise 21(m) should also be deleted because this is addressed
in general obligations, Article 4.2.
Holy See could support two separate articles. To keep
coherence with article 16, it recommended keep references in both as
“health” or as “health care” in 21(a) preceded by the word “all.” It
proposed deleting “sexual and reproductive health services” from 21(a).
Palestine affirmed the importance of free healthcare
services from the State and proposed separate articles for rehabilitation
and healthcare.
Russian Federation believes separating is appropriate.
“Rehabilitation” needs definition in Article 3. It proposed 21(c)(bis):
“Provide persons with disabilities with medical assistance including
the provision of medicines on a free basis in accordance with the minimum
social standards.”
Jordan proposed 21(d), (f), (j), (k), (i), and (l)
be deleted as redundant. It agrees with the EU proposal regarding 21(g)
and (h). It agreed that rehabilitation should be separate article, but
both are medical in nature, so need an empowerment paragraph, to include
a psycho-social model.
Uganda agreed to separate this article into two. It
proposed near the end of the chapeau, after “health,” to add “health
insurance” because many States charge PWD higher premiums for health
insurance. It suggested replacing “endeavor” with “ensure” in 21(c)
and replacing “encourage” with “promote” in 21(f) and in 21(g) to strengthen
these items.
Thailand supported a separate rehabilitation article.
It supported the EU chapeau, but adds “health insurance” as Uganda.
After the word “health insurance,” it proposed adding “on an equal basis
with others and without discrimination.” Some subparagraphs references
on research and development and consultation with PWD should be placed
in other articles. Rehabilitation should reflect the interdisciplinary
nature and should not be fractionalized; it supported India’s proposal
and the inclusion of an empowerment section. Although it values prevention,
the concept should not be in this Convention.
Argentina supported Japan’s amendment in 21(j) because
without that amendment it does not include emergencies, where consent
is unable to be obtained. It also supported Jordan in the deletion of
21(m).
Volume 4, #7
June 2, 2004
Morning Session
Commenced: 10:04 AM
Adjourned: 1:00 PM
Peru joined the proposal for abridging this Article
and dividing it into two. The right to health is fundamental for all
persons, and should be treated separately. Rehabilitation (rehab) is
also important, but is different from health. The Article on the health
should focus on the right of PWD to full access to all health services.
Peru supported Japan’s proposed language borrowed from the ICESCR.
Australia also agreed with the idea of splitting this
Article into two parts, and proposed several amendments to the current
text. In the chapeau, the words “and effective” should be inserted after
“appropriate." In both 21(d), and 21(i), the words “Endeavour to”
should be inserted at the beginning. Regarding 21(h), Australia supported
Canada’s intervention. Both 21(k) and 21(l) are already covered, either
in this Article or elsewhere such as Article 14, and should be deleted.
Norway noted a lack of cohesion between the Article
21 title, “Right to health” and the chapeau’s “right to the enjoyment
of the highest attainable standard of health” as quoted from the Convention
on Economic, Social and Cultural Rights (ICESCR); that language should
be reflected in the title. The concept of rehabilitation is broader
than just medical rehab, and therefore the Article should either explicitly
state that its focus is medical rehab, as proposed by the EU, or the
Article should be split into two, one on health and another on the broader
concept of rehabilitation.
Mexico supported splitting the Article because rehabilitation
should have a broad scope, covering aspects including medical health,
work or education aspects. The proposals advanced by Israel and the
NGOs provide a good foundation for a rehabilitation Article. Mexico
supported 21(a) and (h), protection of PWD medical privacy, commenting
that care should be taken to obtain PWD prior consent for data collection
and dissemination, but this should pose no obstacle to implementing
the provisions in Article 6 for collecting the statistics necessary
to formulate health policies. In 21(k), “interventions” should be elaborated
in greater detail, particularly in respect to people who are unable
to give their consent; Mexico will make a future proposal for this.
Both 21(l) and (m) should be deleted because they duplicate other Convention
provisions.
Cameroon endorsed comments offered by the European
Union (EU). Health should be separated from rehabilitation, but the
Convention should deal specifically with medical rehabilitation, which
differs from social rehabilitation. Also, prevention of disabilities
is an important aspect of health, especially in developing countries,
so a new paragraph, 21(bis), should be added, as follows “States Parties
shall take all necessary measures, particularly by offering programs
and services that are aimed at preventing and fighting congenital or
accidental disabilities.” Cameroon also endorsed the Moroccan comment
on 21(g), with respect to the addition of guardians or legal representatives,
since “those with intellectual disabilities cannot always take care
of themselves in this respect.”
Algeria commented that the Article does not mention
PWD in specialized State or nongovernmental centres. It appended the
chapeau with the sentence: ”They shall try to ensure that no PWD is
denied their rights, and shall take all necessary measures to ensure
access of PWD to health care centers and rehabilitation centers, particularly
in the service of retirees who are being cared for in specialized public
and/or private institutions.”
Colombia noted that Article 22 addresses vocational
rehabilitation, and Article 23 addresses social rehabilitation; therefore
a single Article should cover all different aspects of rehabilitation.
New Zealand supported the India, Israel and EU proposals
to separate health from rehab services, since the present Article may
not give enough emphasis to both aspects. Rehabilitation enables people
to live well with their disabilities and to achieve autonomy. New Zealand
proposed several amendments. In 21(a), the word “citizens” is too narrow,
and should be replaced by “persons”; the word “provide” should be changed
to “ensure”; the word “with” should be changed to “have access to”;
the words “range and standard of” should be deleted; and the words “and
to the same standard” should be inserted after "provided other
persons." In 21(b), “additional” should be inserted in front of
“health and rehabilitation services." In 21(c), the words “as close
as possible” should be replaced by “in”, as this subparagraph is already
qualified by "endeavour.” In 21(j), “free and informed consent
on the provision of information about rights” should apply to each service
offered, so the words “in respect of each service offered” should be
inserted at the end. New Zealand opposed the EU proposal to delete 21(f),
(g), (j), (l), and (m), but would consider proposals to move these ideas
to other parts of the Convention. In particular, 21(g) addresses workforce
issues which have not been dealt with adequately elsewhere in the Convention,
and which are necessary and broader than this paragraph's focus on health
and rehabilitation services. The EU's proposed deletion of 21(h) and
(i) are reasonably covered by the EU's suggested replacement wording.
New Zealand opposed moving 21(k) to Article 12; and supported Mexico's
recommendation to extend this paragraph, or create a new one, to address
issues such as over-medication and the use of treatments which are not
used on the general population. Several additional issues should be
included in the Article.
As suggested by the Asia-Pacific Forum of National Human Rights Institutions,
the new Article should address removing health service barriers such
as requirements for spousal consent, the lack of convenient and affordable
transport, and the inequitable affordability of services. The Article
should also ensure equal access to public health programs such as water
safety and sanitation, HIV/AIDS prevention, breast and cervical screening
for women, etc. The Article should mandate that health services should
not be rationed on the basis of disability. The Article should also
deal with access to other health-related services such as dentistry.
The NZ proposal with commentary is available at www.un.org/esa/socdev/enable/rights/ahc3daily.
Yemen recommended splitting Article 21, and offered
a proposal for a new Article 21(bis) which would deal with both rehabilitation
and training, since the current Article does not mention training.
"1. States Parties undertake to rehabilitation and training of
persons in the psychological, social, physical, professional, and other
fields so as to enable them to exercise their life in a natural and
normal way.
"2. States Parties undertake that the training of PWD and their
rehabilitation would only take place after their willing approval.
"3. Involve the agencies of PWD all over the stages of training
and rehabilitation, including drafting relative or respective legislations.”
Kuwait joined India, the EU, and heads of the Arab
States regarding the importance of splitting Article 21 to create a
special Article in field of health, and another in rehabilitation. Kuwait
also supported Yemen’s proposal.
Lebanon supported amending the Article title to read
“Right to health and medical and paramedical rehabilitation.” In many
countries, rehabilitation services such as speech therapy and functional
therapy are not recognized as medical, and are therefore not part of
national health systems. In the chapeau, after "access," should
be inserted “affordability, adequacy and continuity when needed."
Lebanon supported Yemen’s proposed new Article 21(bis), but suggested
changing the title to “Right to habilitation and rehabilitation.” Lebanon
endorsed the Rehabilitation International text proposal.
The Chair opened the floor for comments from NGOs.
Rehabilitation International, joined by Disabled Peoples
International, Landmine Survivors Network, European Disability Forum,
Inclusion International, World Federation of the Deaf, the World Blind
Union, and the World Union for Progressive Judaism intervened in support
of separating Article 21 into the right to health and the right to rehabilitation,
as proposed by India and Israel. The UN Standard Rules on the Equalization
of Opportunities for People with Disabilities (SR) defines rehabilitation
as a “process aimed at enabling PWD to reach and maintain their optimal
functions.” An equivalent formulation should be used in this Convention.
The term “rehabilitation” includes both “habilitation,” which applies
to those born with disabilities, and “rehabilitation” which applies
to people with acquired disabilities. The obligation to ensure access
to rehabilitation does not supersede the obligation to alter the environment.
States should “redesign society to allow for integration of PWD, rather
than to predicate their integration on their realignment with society.”
Rehabilitation and health should be dealt with in separate articles
for several reasons. Both rehabilitation and habilitation aim at a goal
broader than health, which is the aim to function at the maximum extent
of their own personal capacities. Depicting rehabilitation against the
background of health only heightens the fear of PWD that those exercising
authority over them will impose rehabilitation, and claim the imprimatur
of international law. The right to health should be interpreted broadly,
but it cannot adequately capture the full range of rehabilitation services
required by PWD. Telescoping rehab into health could inhibit in future
monitoring for effectiveness of rehabilitation services. The Article
should build on existing international law, and should universalize
the right to rehabilitation. The philosophy of rehabilitation contained
in the SR flows from the fundamental value of personal autonomy. Additional
authority comes from the European Social Charter, the Inter-American
Convention on the Elimination of All Forms of Discrimination against
PWD, and the Convention on the Rights of the Child (CRC). A comprehensive
right to rehabilitation should be contained in one article, rather than
having its elements sprinkled throughout the Convention, in order to
give the right to rehabilitation the prominence it deserves, and in
order to achieve textual elegance and completeness. These NGOs also
supported the prohibition against forced rehabilitation which was proposed
by Israel. Separate and clear language for women and girls with disabilities
should be included in the health Article. Subparagraph 21(j) should
be amended by inserting “with respect to each service offered” after
“informed consent.” To prohibit rationing of health care services, a
separate subparagraph should be added, reading, “Prohibit the discriminatory
allocation of health care resources and treatment based on disability.”
This should be interpreted to prohibit discriminatory practices in the
health insurance sector.
Disabled Peoples International (DPI) supported separating
the two Articles, and noted that in the UN SR, health and rehabilitation
are dealt with separately in 2 and 3. DPI recommended that 21(b), which
addresses counseling and support, should be strengthened by adding “peer
support,” which is a fundamental disability concept. Subparagraph 21(m),
involving involvement of PWD and their organizations in the formulation
and implementation of legislation and policies, is related to UN SR
3(7) and 14(2).
World Network of Users and Survivors of Psychiatry (WNUSP)
stressed the importance of the non-discrimination provisions for health
care services, particularly for people living in institutions, who are
often denied access to medical care for physical problems, and die as
a result. WNUSP supported the general call for separation into health
and rehabilitation, but noted that its constituents do not want psychosocial
services to be defined purely from a medical perspective. More diverse
options should be available, such as psychotherapy as well as psychiatry.
The suggestions by NZ and Rehabilitation International, requiring free
and informed consent for each service offered, should be adopted. Informed
consent should not be predicated on legal capacity in the traditional
sense, but should include the concept of supported decisionmaking.
Society for the Protection of Unborn Children (SPUC)
spoke on behalf of its affiliate, No Less Human, and the Pro-Life and
Pro-Family Coalition. A new paragraph, 21(n), should be added to read
as follows: “ensure (i) that a PWD shall be provided food and fluids,
nutrition and hydration, including assisted food and fluids, nutrition
and hydration, necessary to preserve or sustain that person’s life.
(ii) A PWD shall not be denied medical treatment necessary to preserve
or sustain that person’s life.” They also support deletion of the 21(a)
phrase “including sexual and reproductive health services,” because
PWD need the full range of health care, so one type should not be mentioned;
and also because the phrase “reproductive health services” includes
abortion, and the treaty will be legally binding on States Parties,
they reject this phrasing.
National Right to Life (NRL) supported deletion of
the words 21(a) “including sexual and reproductive health services”
because PWD need a full range of health services, and there is no need
to single out reproductive health. Doing so would promote the use of
genetic testing to abort unborn babies with disabilities, and abortion
for women with disabilities (WWD). NRL proposed alternative wording
to 21(n) as follows: ”We ensure that under no circumstances may a PWD
be denied medical treatment, food or fluids necessary to sustain that
person without clear and convincing evidence beyond a reasonable doubt
that the PWD, while competent, rejected it on the basis of information
sufficient to constitute informed consent.”
Peoples with Disabilities Australia, on behalf of
the National Association of Community Legal Centres of Australia, Persons
with Disabilities Australia, Inc. and the National Federation of Disability
Organisations, supported all interventions proposing separation into
two Articles, strengthening of both, and references to community-based
rehabilitation. It supported inclusion and elaboration of women’s health
issues, health care for children and indigenous people, and involvement
of PWD in the design and provision, monitoring and review of these services.
It proposed amendments incorporating explicit reference to dental health
and mental health. The Article should specify that persons subject to
compulsory mental health services should be treated in the health care
system, not the criminal justice system, and that provision of such
care should never be used as a punishment. In 21(j), there should be
added a carefully-worded emergency exemption, to allow sharing of medical
information in situations where information is vital to preserve life,
or the absence of information will lead to additional harm.
Handicap International and Save the Children
supported the proposals made by Namibia, Costa Rica and Chile
to add specific references to community based rehabilitation which is
a key condition to raise societal disability awareness.
International Convention Solidarity in Korea proposed
that Article 21 should not be separated. Any new article should mention
all types of rehabilitation, including social, vocational, educational,
and medical rehabilitation. An article specifically addressing rehabilitation
could overlap with the content of Articles 17 and 22, leaving no substantive
content. The rights of PWD can be explained without using the word “rehabilitation,”’
as rehab is related to all disability issues.
International Labour Organization (ILO) supported
the proposal by RI and other delegates to separate the right to rehab
from the right to health, but emphasized that rehabilitation is a means
to the end of achieving equality and inclusion in accordance with individual
choice, rather than an end in itself.
World Health Organization (WHO) focused on the risks
of separating health and rehabilitation, as proposed by Israel and India.
Disability requires a multilateral approach. The UN Millennium Declaration
establishes health as a primary goal, and to separate help from rehabilitation
could weaken the possibility of realizing its goals, especially for
those living in poor countries. Medicine is distinct from health: Medicine
relates to actions taken to remove threats to the well being of people,
while health addresses social conditions and living standards. Poverty
is the principle cause of diseases and disabilities, and disability
generates more poverty for PWD and their families. Good health could
help eliminate poverty among PWD. In the draft Convention, rehabilitation
is clearly mentioned in the articles on work, education, health and
definitions, and is based on a human rights framework. These articles
provide guidelines to the UN and to Member States. Rehabilitation is
not a requirement, and when it is provided, it is for a limited time.
Some PWD have had negative experiences during the rehabilitation process,
but this is the exception rather than the rule. Rehabilitation has contributed
to participation and involvement by many PWD around the world. In many
developing countries, rehabilitation services are provided by organizations,
and this leads to some governments failing to comply with their commitment
to provide such services. The Convention should reinforce relevant actions
by all Member States.
National Human Rights Institutions supported splitting of Article
21 into separate Articles focusing on health and rehabilitation, as
explained by of Rehabilitation International, and support the tenor
of the Israeli proposal in this context. The content of rehabilitation
is not limited to health.
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