Comments, proposals and amendments submitted electronically

Governments

CHILE

ARTICLE 21 – Right to health and rehabilitation

OBSERVATION:

The right to health should be separated from rehabilitation and the latter should be treated as a specific right, since it has its own nature and components, as well as particular objectives. Chile also acknowledges it as a right in its legislation.

A letter should be added to this Article:

(letter) States should promote rehabilitation programmes based on the community.

Note: Prevention as a right: The right to secondary prevention to avoid progression of a disability or the production of other disabilities, as well as prevention in terms of vaccinations and genetic consultations before pregnancy, when considered hereditary pathologies. In Chile, prevention constitutes a State obligation and a right for persons with disabilities, their families together with the society at large.

Letter (e) - Add the word “adults” as follows:

(e) Provide programmes and services to prevent and protect against secondary disabilities, in particular among children, adults and the elderly.

Letter (f) – add the phrase “biomedic, genetic, scientific” as follows:

(f) Encourage biomedic, genetic and scientific research and the development, dissemination and application of new knowledge and technologies that benefit persons with disabilities.

Letter (h) – add the phrase “their knowledge” between “to increase” and “disabiliy-sensitive”, as follows:

(h) Provide to all health and rehabilitation professionals an appropriate education and training to increase their knowledge and their disability-sensitive awareness…….

Letter i) (in the Spanish version of the Draft Convention text) – In the last line, change the word “satisfactoria” for the word “competente”,

Note: Placing the word “competente” elevates the minimum standards that implies by the word “satisfactoria”, appears in the Spanish Draft Convention text.

Letter (k) – should be modified as follows:

(k) Prevent medical treatments, rehabilitation and other types of corrective surgical procedures on persons with disabilities which are not authorized by them or their representatives.

Note 1. The bioethic principle of autonomy has precedence over all principles/placing the treatment of rehabilitation resides in the same article.

Note 2: This article may be drafted in proactive or positive terms such as: “prevent application of medical treatments…always taking into account the authorization or consent of the persons with disabilities or their representatives”.

OBSERVATION

Health insurance for the disabled without discrimination and at a price equivalent to that given to persons without disabilities (related to those cited under the article on social security).

Additional Articles

a) ACCESS TO LAW AND JUSTICE BY PERSONS WITH DISABILITIES IN EQUAL CONDITIONS WITH THOSE ENJOYED BY THE REST OF THE POPULATION:

“States should guarantee adequate access to the law and justice of persons with disabilities, facilitating their effective role as direct or indirect parties to the judicial process, such as in non-contentious legal proceedings. In this context, the justice tribunals should design and implement training programmes directed to the judiciary and its personnel which permit the implementation of this provision”.

b) NORM OF INTERPRETATION OF THE CONVENTION:

“The provisions of this Convention should always be interpreted in the most favourable sense to persons with disabilities, to avoid impediments to their rights.”

COSTA RICA

Draft Article 21
RIGHT TO HEALTH AND REHABILITATION

States Parties recognize that all persons with disabilities have the right to the enjoyment of the highest attainable standard of health on an equal basis and considering human diversity without discrimination on the basis of disability. States Parties shall strive to 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 health and rehabilitation services. In particular, States Parties shall:

(a) provide persons with disabilities with the same range and standard of health and rehabilitation services as provided other citizens, including sexual and reproductive health services;

(b) strive to provide those health and rehabilitation services needed and requested by persons with disabilities specifically because of their disabilities;

(c) endeavour to provide these health and rehabilitation services as close as possible to people’s own communities, including domiciliary attention and Community Based Rehabilitation;

(d) ensure that health and rehabilitation services include the provision of safe respite places, to use on a voluntary basis, and counselling and support groups, including those provided by persons with disabilities;

(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;

(g) encourage the development of sufficient numbers of health and rehabilitation professionals, including persons who have disabilities, covering all disciplines needed to meet the health and rehabilitation needs of persons with disabilities, and ensure they have adequate specialised training;

(h) provide all health and rehabilitation professionals an appropriate education and training to increase their disability-sensitive awareness and respect for the rights, dignity and needs of persons with disabilities, in line with the principles of this Convention;

(i) ensure that a code of ethics for public and private healthcare, that promotes quality care, openness and respect for the human rights, dignity and autonomy of persons with disabilities, is put in place nationally, and ensure that the services and conditions of public and private health care and rehabilitation facilities and institutions are well monitored;

(j) ensure that health and rehabilitation services provided to persons with disabilities, and the sharing of their personal health or rehabilitation information, occur only after the person concerned has given their free and informed consent, and that health and rehabilitation professionals inform persons with disabilities of their relevant rights;

(k) prevent impede unwanted medical and related interventions and corrective surgeries from being imposed on persons with disabilities; (in Spanish it was translated as “impede”)

(l) protect the privacy of health and rehabilitation information of persons with disabilities on an equal basis;

(m) promote the involvement of persons with disabilities and their organizations in the formulating of health and rehabilitation legislation and policy as well as in the planning, delivery and evaluation of health and rehabilitation services.

EUROPEAN UNION

Draft Article 21
RIGHT TO HEALTH AND REHABILITATION

EU Proposal: EU suggests rewording the title of this Article as follows: “ACCESS TO HEALTHCARE AND MEDICAL REHABILITATION”

EU proposal: Insert the word “medical” before “rehabilitation” throughout this Article.

States Parties recognise that all persons with disabilities have the right to the enjoyment of the highest attainable standard of health without discrimination on the basis of disability. States Parties shall strive to 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 health and rehabilitation services. In particular, States Parties shall:

(a) provide persons with disabilities with the same range and standard of health and rehabilitation services as provided other citizens, including sexual and reproductive health services;

(b) strive to provide those health and rehabilitation services needed by persons with disabilities specifically because of their disabilities;

(c) endeavour to provide these health and rehabilitation services as close as possible to people’s own communities;

(d) ensure that health and rehabilitation services include the provision of safe respite places, to use on a voluntary basis, and counselling and

support groups, including those provided by persons with disabilities;

EU Proposal: Delete (d)

(e) provide programs and services to prevent and protect against secondary disabilities, including amongst children and the elderly;

EU Proposal: Delete (e) as the issue is dealt with in (b)

(f) encourage research and the development, dissemination and application of new knowledge and technologies that benefit persons with disabilities;

EU Proposal: Delete (f)

(g) encourage the development of sufficient numbers of health and rehabilitation professionals, including persons who have disabilities, covering all disciplines needed to meet the health and rehabilitation needs of persons with disabilities, and ensure they have adequate specialised training;

EU Proposal: Delete (g)

EU Proposal for (h), (i)and (j): EU proposes replacing (h), (i) and (j) with the following sub-paragraph:

“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”

(h) provide all health and rehabilitation professionals an appropriate education and training to increase their disability-sensitive awareness and respect for the rights, dignity and needs of persons with disabilities, in line with the principles of this Convention;

(i) ensure that a code of ethics for public and private healthcare, that promotes quality care, openness and respect for the human rights, dignity and autonomy of persons with disabilities, is put in place nationally, and ensure that the services and conditions of public and private health care and rehabilitation facilities and institutions are well monitored;

(j) ensure that health and rehabilitation services provided to persons with disabilities, and the sharing of their personal health or rehabilitation information, occur only after the person concerned has given their free and informed consent, and that health and rehabilitation professionals inform persons with disabilities of their relevant rights;

(k) prevent unwanted medical and related interventions and corrective surgeries from being imposed on persons with disabilities;

EU Proposal: Move to Article 12 and reword

(l) protect the privacy of health and rehabilitation information of persons with disabilities on an equal basis;

(m) promote the involvement of persons with disabilities and their organizations in the formulating of health and rehabilitation legislation and policy as well as in the planning, delivery and evaluation of health and rehabilitation services.

EU Proposal: Delete (l) and (m)

INDIA

Article 21

Deletion of the following:

- “and rehabilitation services” from the chapeau and from (a), (b), (c) and (d)

- “and rehabilitation professionals” from (g) and (h)

- “rehabilitation facilities” from (k)

- “and rehabilitation information” from (i)

- “and rehabilitation legislation” from (m)

- Article 21(e)

Article 21bis
Right to Rehabilitation

1. States Parties recognize that rehabilitation is a prerequisite for the equalization of opportunities and the full inclusion of persons with disabilities. To that end, States Parties shall endeavour to ensure:

(a) access to a continuum of rehabilitation services, including, inter alia, physiotherapy, occupational therapy, speech language and communication therapy, psychosocial counselling and therapies.;

(b) these services are provided, to the extent possible, close to the communities in which persons with disabilities live;

(c) the development of appropriate and specialized human resources and training material to support the same;

(d) the production, usage and monitoring of good quality assistive devices at affordable prices, and the promotion of research and development of the same [removal of this clause from article 19(e) and 20(c)];

(e) availability of programmes and services to prevent and protect against secondary disabilities;

(f) active involvement of persons with disabilities and their families in matters of rehabilitation plans and policies;

MEXICO

Article 21
Right to health and rehabilitation

Comment:

- Mexico supports the elaboration of a separate article on rehabilitation and habilitation, which is broad in scope and not linked only to health or medical issues, nor to education or work.

States Parties recognize that all persons with disabilities have the right to the enjoyment of the highest attainable standard of health without discrimination on the basis of disability. States Parties shall strive to 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 health and rehabilitation services. In particular, States Parties shall:

(a) Provide persons with disabilities with the same range and standard of health and rehabilitation services as provided to persons without disabilities, including sexual and reproductive health services;

(b) Strive to provide those health and rehabilitation services needed by persons with disabilities specifically because of their disabilities;

(c) Endeavour to provide these health and rehabilitation services as close as possible to people’s own communities;

(d) Ensure that health and rehabilitation services include the provision of safe respite places, to use on a voluntary basis, and counselling and support groups, including those provided by persons with disabilities;

(e) Provide programmes and services to prevent and protect against secondary disabilities, including among children and the elderly;

(f) Encourage research and the development, dissemination and application of new knowledge and technologies that benefit persons with disabilities;

(g) Encourage the development of sufficient numbers of health and rehabilitation professionals, including persons who have disabilities, covering all disciplines needed to meet the health and rehabilitation needs of persons with disabilities, and ensure that they have adequate specialized training;

(h) Provide to all health and rehabilitation professionals an appropriate education and training to increase their disability-sensitive awareness and respect for the rights, dignity and needs of persons with disabilities, in line with the principles of this Convention;

(i) Ensure that a code of ethics for public and private health care, which promotes quality care, openness and respect for the human rights, dignity and autonomy of persons with disabilities, is put in place nationally, and ensure that the services and conditions of public and private health care and rehabilitation facilities and institutions are well monitored;

(j) Ensure that health and rehabilitation services provided to persons with disabilities, and the sharing of their personal health or rehabilitation information, occur only after the person concerned has given their free and informed consent, and that health and rehabilitation professionals inform persons with disabilities are informed of their relevant rights;

Comment:

- The need for consent in the sharing of health information should be dealt with in a way that it does not constitute an obstacle to the collection of disability data with the purpose of identifying health needs and designing and implementing public policies and programs in that regard, in line with the provisions of article 6.

(k) Prevent unwanted medical and related interventions and corrective surgeries from being imposed on persons with disabilities;

(l) Protect the privacy of health and rehabilitation information of persons with disabilities on an equal basis;

Comment:

- The convention should contain strong provisions regarding the protection of privacy of medical information in the context of article 14, and the issue is additionally covered in paragraph (j) above. Repetition in this article should be avoided.

(m) Promote the involvement of persons with disabilities and their organizations in the formulation of health and rehabilitation legislation and policy as well as in the planning, delivery and evaluation of health and rehabilitation services.

Comment:

- The convention should contain a comprehensive and strong provision for the participation of persons with disabilities in the design and implementation of policies, in the context of article 4, in order to avoid selective repetition of such a provision in other articles.

NAMIBIA

PROPOSAL Article 21 A (Community Based) Rehabilitation 1

1.

2. States Parties shall recognise CBR as a rights based strategy to alleviate poverty and to address the direct and indirect socio-economic costs of disability at the level of the individual, family and the society at large

3. States Parties shall enhance a rights, social and economic approach in the development of CBR services

a. Mobilising awareness and responsiveness towards equal rights among disabled children and adults, authorities and the society at large

b. removing attitudinal, financial and infra-structural barriers in society, and promoting inclusive public and private services for all, particularly for disabled children and adults

c. consulting and strengthening representative organisations of disabled children, adults as well as their families as primary stakeholders in the full development of such strategies and services

d. enabling disabled children and adults to reach their potential through the development of CBR strategies and services at all levels, which are affecting attitude change at large and based upon priorities of disabled children, adults and caregivers themselves to achieve their rights

e. providing early intervention-, advisory-, functional training- and respite services to disabled persons, families and caregivers in the community aiming at self-reliance and full participation

4. States Parties shall equip and empower a national co-ordinating disability body with the responsibility to manage CBR at national and international level, assuring cohesiveness across national legislation, strategies and service provisions and in line with all other disability issues.

a. the consultation of and best interests of disabled children and adults being paramount

b. access, affordability and quality of such services is assured at all governmental levels for all children, adults and their families

c. ensure BR is included in all community activities at all levels

Footnote:

1. Community Based Rehabilitation covers the full rehabilitation and referral system at primary, secondary and tertiary levels. The term as such also reflects a more comprehensive, social and rights based notion and thus is preferred above the term rehabilitation which reflects a primarily medical notion.

SOUTH AFRICA

ARTICLE 21
RIGHT TO HEALTH

New proposed title to ACCESS TO HEALTH CARE.

Sub Para

(a) provide persons with disabilities with the same range and standard of health services including rehabilitation as well as sexual and reproductive health services as provided to other citizens;

(b) Achieve the progressive realisation of disability specific health and rehabilitation services. We are of the view that the last part of the sentence that reads “specifically because of their disabilities” is irrelevant and hence propose its deletion.

Chair the South African delegation proposes a sub-division of Para (d) such that:

Sub Para bis (d)

(i) Ensure that health and rehabilitation services include the provision of respite places, to use on a voluntary basis, which should include and counselling and support groups. Here chair we propose the deletion of the word “safe” as it is part of the discussions on Article 12 on Violence and Abuse. We have further proposed a re-writing of the statement. The proposed amendment will be forwarded to the secretariat.

Sub Para bis (d)

(ii) Endeavour to support facilities that are in the ownership or managed by persons with disabilities;

Sub Para (h) to delete “and rehabilitation” such that the sub paragraph reads”PROVIDE ALL HEALTH CARE PROFFESSIONALS AN APPROPRIATE EDUCATION, ETC. Chair the focus on this sub para should be on health care.

Sub Para (L) to be deleted in totality for reasons that the ARTICLE 6 on Statistics and Data Collection adequately addresses the matter of privacy of information.

UN System organizations

OHCHR

See references to international human rights conventions and jurisprudence.

WHO

Article 21 Right to health and rehabilitation

The fundamental right to the highest attainable standard of health for all is reflected in the Constitution of WHO (1946) and reiterated in the Declaration of the Alma Ata (1978). Furthermore, the most authoritative interpretation of the right to health is outlined in Article 12 of the International Covenant on Economic, Social and Cultural Rights.

A rights-based approach to health entails recognizing the individual characteristics of the population groups concerned (WHO, 2002). Within this context, the right to health and rehabilitation has been addressed by the following World Health Assembly resolutions: (WHA29.68, WHA38.18,WHA42.28, and WHA45.10) . These emphasize the importance of rehabilitation and urge Member States to develop their rehabilitation services as an integral part of the national health system. Furthermore, the Alma-Ata Conference and Declaration on Primary Health Care (PHC) provided a new vision for providing promotive, preventive, curative and rehabilitative services for the main health problems in the community.

The Declaration of Alma-Ata states that people have the right and duty to participate individually and collectively in planning and implementing their health care. This concept led to development of the Community-Based Rehabilitation (CBR) as a strategy for community development. The recent international consultation to review CBR affirmed CBR as a strategy towards poverty reduction, as it is widely acknowledged that poor people are disproportionately disabled and disabled people are disproportionately poor.

Furthermore, the consultation asserted that CBR embodies the core concepts of human rights: life, liberty, and equality. Hence, WHO would like to suggest the inclusion of provisions that promote CBR as a strategy in addressing the right to health and rehabilitation (WHO, 2003a). WHO also suggests the inclusion of provisions related to healthy ageing of adults with intellectual disabilities (WHO, 2003b). WHO believes that rehabilitation includes all measures aimed at reducing the impact of a health condition on an individual, enabling him or her to achieve independence and social integration in order to enhance their quality of life. Within this context, the International Classification of Functioning, Disability and Health (ICF) endorsed by all WHO Member States at the Fifty-fourth World Health Assembly provides a framework for developing disability policy.

WHO affirms its support in preventing the imposition of unwanted medical and related interventions on persons with disabilities. However, WHO would like to highlight the need for appropriate legal safeguards to avoid the risk of people with disabilities being unable to be treated involuntarily because they have a disability (WHO,2003).

While WHO fully supports the need for the convention to address economic independence of persons with disabilities within the context of right to work, WHO would like to suggest that the article on health and rehabilitation refer to “medical rehabilitation” (i.e., physical, occupational, speech, language and communication).

National Human Rights Institutions

ASIA PACIFIC FORUM

Access to Right to Health

262. Article 21 provides for the Right to health and rehabilitation, that States Parties recognize that all persons with disabilities have the right to the enjoyment of the highest attainable standard of health without discrimination on the basis of disability, and providing that States Parties “shall take all appropriate measures to ensure access for people with disabilities to health and rehabilitation services”. Sub articles (a) to (m) elaborate this right.

263. What is missing is elaboration of three components of the concept of “access”, economic accessibility, information accessibility, and physical accessibility.

264. Article 12 of ICESCR provides for the right of everyone to the enjoyment of the highest attainable standard of physical and mental health (the right to health is also provided for in CERD, CEDAW, and CROC). General comment 14 of the Committee on Economic, Cultural and Social Rights is aimed towards assisting States Parties to implement article 12. According to the Committee, the right to health includes the following inter-related elements: availability; accessibility; acceptability and quality.

“Accessibility has four overlapping dimensions:
Non-discrimination: health facilities, goods and services must be accessible to all, especially the most vulnerable or marginalized sections of the population, in law and in fact, without discrimination on any of the prohibited grounds. (7)

Physical accessibility: health facilities, goods and services must be within safe physical reach for all sections of the population, especially vulnerable or marginalized groups, such as ethnic minorities and indigenous populations, women, children, adolescents, older persons, persons with disabilities and persons with HIV/AIDS. Accessibility also implies that medical services and underlying determinants of health, such as safe and potable water and adequate sanitation facilities, are within safe physical reach, including in rural areas. Accessibility further includes adequate access to buildings for persons with disabilities.

Economic accessibility (affordability): health facilities, goods and services must be affordable for all. Payment for health-care services, as well as services related to the underlying determinants of health, has to be based on the principle of equity, ensuring that these services, whether privately or publicly provided, are affordable for all, including socially disadvantaged groups. Equity demands that poorer households should not be disproportionately burdened with health expenses as compared to richer households.

Information accessibility: accessibility includes the right to seek, receive and impart information and ideas concerning health issues. However, accessibility of information should not impair the right to have personal health data treated with confidentiality.

265. Further, General comment 14 states that the Right to Health imposes three types or levels of obligations on countries: the obligations to respect, protect and fulfil. The obligation to respect obliges countries to refrain from interfering directly or indirectly with the enjoyment of the right to health; the obligation to protect requires States parties to take measures to prevent third parties from interfering with article 12 guarantees; the obligation to fulfil contains obligations to facilitate, provide and promote.

266. Footnote 75 to the Working Group text, appended to provisions relative to the Right to Health indicates that “some members suggested that affordability…should be addressed in the Convention”. It is noted that affordability issues and issues of access to clean water, are raised in the context of access to social security and an adequate standard of living. Article 23 (1) (c) ensures access by persons with severe and multiple disabilities, and their families, living in situations of poverty, to assistance from the State to cover disability-related expenses. There were suggestions that the provisions of this subparagraph should apply to persons with disabilities generally (footnote 103). Article 23 (2) provides that State parties recognise the right of all persons with disabilities to an adequate standard of living…including access to clean water, and to the continuous improvement of living conditions, and will undertake appropriate steps to safeguard and promote the realisation of this right”. Footnote 7 states that some members of the Working Party considered this should be deleted as it is not a right guaranteed under ICESCR; others considered the reference was critical to the treatment and prevention of disabilities and should be strengthened to include “basic services”.

Proposed additional subparagraphs

Article 21

(n) recognise the right of all persons with disabilities, including in rural areas, to access health facilities, goods and services that are within safe physical reach and to the continuous improvement of living conditions, and will undertake appropriate steps to safeguard and promote the realisation of this right

(o) recognise the right of all persons with disabilities, including in rural areas, to access medical services and underlying determinants of health, such as safe and potable water and adequate sanitation facilities, that are within safe physical reach and to the continuous improvement of living conditions, and will undertake appropriate steps to safeguard and promote the realisation of this right

(p) ensure that payment by persons with disabilities for healthcare services and for the determinants of health is based on the principle of equity, to enable such services to be affordable for all

(q) protect and promote the right for persons with disabilities to seek, receive and impart information and ideas concerning health issues

NATIONAL HUMAN RIGHTS INSTITUTIONS

Intervention at the Third Session:

Article 21

The National Human Rights Institutions support the splitting of Article 21 into an Article on health and a separate Article on rehabilitation. This would reflect an understanding that rehabilitation is not a concept limited to the area of health. We therefore support the tenor of the Israeli proposal.

ONTARIO HUMAN RIGHTS COMMISSION

Article 21 – Right to health and rehabilitation

States Parties recognize that all persons with disabilities have the right to the enjoyment of the highest attainable standard of health without discrimination on the basis of disability. States Parties shall strive to 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 health and rehabilitation services.

The Commission is supportive of this Article. The notion, “shall take appropriate measures to ensure access” is in essence the duty to accommodate persons with disabilities in accessing health and rehabilitation services. The Supreme Court of Canada has made a landmark decision in this regard. In the case of Eldridge v British Columbia,17 deaf individuals successfully challenged being denied sign language interpreters while attending at a hospital for medical services. The Court found:

Para.94 …Given the central place of good health in the quality of life of all persons in our society, the provision of substandard medical services to the deaf necessarily diminishes the overall quality of their lives. The government has simply not demonstrated that this unpropitious state of affairs must be tolerated in order to achieve the objective of limiting health care expenditures. Stated differently, the government has not made a “reasonable accommodation” of the appellants’ disability. …

(b) Strive to provide those health and rehabilitation services needed by persons with disabilities specifically because of their disabilities;

The Commission is supportive of this paragraph. Also see the Commission’s comment above under draft Article 16.

Non-governmental organizations

AUSTRALIAN NGOs

Draft Article 21

Thank you Mr Chairman:

We support both government and non-government interventions which state that rehabilitation should be removed from article 21 and developed into a separate article, that both the health and rehabilitation articles be strengthened and that reference should be made to community based rehabilitation. With these interventions in mind, we now make the following comments:

We support the interventions which recommend that there should be specific mention of issues relating to women’s health. We also recommend that there should be specific mention of the health and rehabilitation needs of children and a requirement that these needs be elaborated and addressed explicitly.

With regard to those interventions which recommended the involvement of people with disability in the design and provision of health and rehabilitation services, we also note that it is important to ensure that people with disability are involved in the monitoring and review of rehabilitation and health services.

The current wording of draft article 21 does not address two important areas of health care – oral health (including dental care) and mental health. It is our recommendation therefore that the text of the article be amended to include explicit reference to these areas.

Oral care and mental health are vital for the proper enjoyment of life. Oral care is often omitted from mainstream health care, but is equally as important as other forms of medical care, particularly when it comes to the ability to maintain proper nutrition, to avoid pain caused by poor oral health, and to properly enjoy the act of eating. Without provision for proper mental health care, people with disability may experience increased levels of distress and impaired functioning which may impact upon our ability to enjoy the other rights set out in this convention.

The article should be amended to specify that persons subject to compulsory assistance on the basis of mental illness should not be accommodated in a criminal justice institution. Likewise, if an individual is diverted from the criminal justice system on the basis of mental illness, that individual must not then be detained within the criminal justice system, but should be provided with treatment within the health care system.

In any event, the provision of health care must never be used as a punishment.

We note that sub paragraph (j) provides that health information cannot be shared without the consent of the person with disability. We would recommend an exception in the case of emergency. The exemption would need to be carefully worded as to only apply in situations where the exchange of information is vital to the preservation of life or in situations where the absence of necessary information will lead to additional harm.

An obvious example is the situation involving the quick access of information before providing an emergency intervention on a person who is unconcious and thereby unable to give consent.

Finally, we note sub-paragraph (f) and the corresponding footnote (footnote 78) which makes reference to the issue of genetics. On this point, we refer back to our intervention on article 8 – Right to Life, and reiterate that genetic information should not be used as grounds for the elimination of, or discrimination against, people with disability.

BIZCHUT

Draft Article 21 – Right to Health and Rehabilitation

(a) Provision of health services within the general framework

We suggest adding to the fundamental principles of the right to health presented in clauses (a) – (c), the right of a person with a disability to receive health services on an equal basis within the framework of general health services. Highlighting this right is necessary in order to prevent segregation in the provision of services. In Israel, for example, the National Health Law, which placed the provision of mental health services outside of the general health service, has perpetuated the position of mental health services as a “stepchild” of the system, in terms of the quality of the services, the budget allocated to them and the principle of providing them within the community.

(b) Making the health service accessible to people with all kinds of disabilities

Making health services accessible involves aspects that differ from one disability to another. In addition to the well known aspect of making buildings and equipment accessible, accessibility also includes training of staff in the field of disabilities, and, especially in the case of persons with developmental or emotional disabilities, the provision of readily available medical treatment, appropriate to their special needs, that will enable them to live in the community. In addition, training in and awareness of ways to communicate with them (with regard to persons with hearing impairments as well) should be provided.

We suggest that the obligation to make the health service accessible to persons with all kinds of disabilities be stated explicitly.

As part of this obligation, we suggest that the following requirements also be stated explicitly:

1) training professionals to communicate with and give appropriate treatment to persons with communication difficulties caused by physical, sensory, developmental or emotional disabilities;

2) training professionals to give treatment to people with multiple disabilities, such as those with both developmental and emotional disabilities.

In the absence of such training, these people are denied appropriate psychiatric care, and at times all medical care.

(c) Training professionals who can work in secondary languages

The shortage of professionals who speak a secondary/minority language, especially language clinicians and audiologists, directly harms persons with disabilities who speak a minority language. In Israel, for example, there is a continuing shortage of Arabic speaking language clinicians and audiologists. As a result of this, many children and persons with disabilities from the Arab sector, do not receive such treatments in their native language. We suggest, that it be stated explicitly that professionals will be trained in order to provide appropriate treatment in a minority/secondary language.

EUROPEAN DISABILITY FORUM

Draft Article 21 Right to health and rehabilitation

This article might be clearer if it is divided into two articles: one dealing with the access of disabled people to general healthcare issues and a second one dealing with the specific (re)habilitation issues which some disabled people require.

As referred to in footnote 74 of the draft Convention, (re)habilitation goes beyond medical issues. A definition of both concepts (rehabilitation and habilitation) in the article 3 seems to be appropriate.

EDF is against a reference to prevention of impairments, but supports a reference to the prevention of secondary impairments as included in paragraph e).

INDIAN NGO CONSULTATIVE MEETING

Draft Article 21

34. Minor additions are suggested to the text of article 21 for example- add “disability NGOs” after the word ‘monitored’ in article 21-i).

35. In 21-j) addition of “his/her guardian” after the word ‘persons concerned’.

36. Similarly in 21-k) add “ without the consent of the person or their guardians as the case may be” after the word ‘disabilities’.

37. Some participants strongly felt that in Article 21- Health and Rehabilitation should be separated in two articles to give prominence to each area.

INTERNATIONAL SAVE THE CHILDREN ALLIANCE

Draft Article 21 – health (and rehabilitation)

The coverage of both health and rehabilitation in one article is questionable as it just perceives rehabilitation as a component of health. We suggest to draft an article on health and a separate article on rehabilitation. With regard to health we advise to follow a similar pattern as in the education article. Aiming for accessible & quality health services for all, including disabled children and adults, as the rule and specific services as an exception to prepare for and support basic health services. The entire article on health needs to be revised into a less medical-technical language.

Suggested change

States Parties recognise that all persons with disabilities have full access to health services and the right to the enjoyment of the highest attainable standard of health without discrimination on the basis of disability. In particular States Parties shall:

a. provide persons with disabilities with the same range and standard of health services as other citizens, including sexual and reproductive health services

b. develop understanding of disability rights, respect for diversity, non-discriminatory attitudes and a realistic perception of the capacities of disabled people as users of health services for health professionals at all levels, in line with the principles of this Convention

c. involve children and adults with disabilities and their respective organisations in the development and monitoring of health policies and of a code of ethics for public and private health care, promoting quality, transparency and respect for human rights at national level

d. strive to provide specific health services needed by persons with disabilities to enable optimal development potential and self-reliance in daily life

e. ensure that respect is afforded to children and adults with disabilities to give consent to or refuse medical interventions of all kind, in accordance with their evolving capacities. Arrange decision-making in accordance with earlier articles in this convention.6

Draft Article 21a – rehabilitation

The access to basic rehabilitation is particularly important for disabled children and all persons with recently acquired, chronic or progressive disabilities. We advise that the recommendations of the International Consultation to review CBR7 will be furthered in the final wording of this article

Suggested change

States Parties shall take all appropriate measures to ensure access, quality and utility of rehabilitation services. In particular, States Parties shall:

a. facilitate the development of comprehensive rehabilitation strategies, resources and services starting in the community and supported by secondary and tertiary services, including the provision of respite places

b. develop rehabilitation strategies with disabled children and adults which enable full development, prevention of secondary disabilities, self-reliance in daily life, participation in all aspects of life and society

c. promote co-ordination of rehabilitation services with basic services in the daily life environment of children and adults with disabilities preparing full participation in, and the development of inclusive services

d. ensure full participation of representative organisations of disabled children and adults in the development of policies, strategies and programs in rehabilitation ensuring these services to be responsive to the actual needs of disabled persons

e. facilitate the mobilisation of democratic and representative of self-help groups, disabled people organisations from the local to the national level, representing diversity and countering discrimination among disabled people

f. encourage research, dissimination and application of new knowledge that will benefit persons with disabilities

Draft Article 21

Comments made at the Third Session:

Proposal by Save the Children

Handicap International

Save the Children recommends the drafting of 2 separate articles: 21 health and a new article 21 A community based rehabilitation.

With regard to health we advise to follow a similar pattern as used for the education article. Aiming for accessible and quality health services for all, including disabled children and adults. The entire article on health needs to be revised in a rights based instead of medical-technical language.

Article 21

Health

Suggested change

States Parties recognise that all persons with disabilities have full access to health services and the right to the enjoyment of the highest attainable standard of health without discrimination on the basis of disability. In particular States Parties shall:

a. provide persons with disabilities with the same range and standard of health services as other citizens, including sexual and reproductive health services

b. develop understanding of disability rights, respect for diversity, non-discriminatory attitudes and a realistic perception of the capacities of disabled people as users of health services for health professionals at all levels, in line with the principles of this Convention

c. involve children and adults with disabilities and their respective organisations in the development and monitoring of health policies and of a code of ethics for public and private health care, promoting quality, transparency and respect for human rights at national level

d. ensure that respect is afforded to children and adults with disabilities to give consent to or refuse medical interventions of all kind, in accordance with their evolving capacities. Arrange decision-making in accordance with earlier articles in this convention.1

With regard to rehabilitation we recognise the International Consultation to review CBR and advise to further the recommendations in the final wording of the text.

PROPOSAL Article 21 A (Community Based) Rehabilitation 2

1. States Parties undertake to comply with their obligations to resource and co-ordinate Community Based Rehabilitation3 (CBR) as a comprehensive strategy to move towards an inclusive society and service provision for all, ensuring that disabled children and adults enjoy their rights equally and without discrimination.

2. States Parties shall recognise CBR as a rights based strategy to alleviate poverty and to address the direct and indirect socio-economic costs of disability at the level of the individual, family and the society at large

3. States Parties shall enhance a rights, social and economic approach in the development of CBR services

a. Mobilising awareness and responsiveness towards equal rights among disabled children and adults, authorities and the society at large

b. removing attitudinal, financial and infra-structural barriers in society, and promoting inclusive public and private services for all, particularly for disabled children and adults

c. consulting and strengthening representative organisations of disabled children, adults as well as their families as primary stakeholders in the full development of such strategies and services

d. enabling disabled children and adults to reach their potential through the development of CBR strategies and services at all levels, which are affecting attitude change at large and based upon priorities of disabled children, adults and caregivers themselves to achieve their rights

e. providing early intervention-, advisory-, functional training- and respite services to disabled persons, families and caregivers in the community aiming at self-reliance and full participation

4. States Parties shall equip and empower a national co-ordinating disability body with the responsibility to manage CBR at national and international level, assuring cohesiveness across national legislation, strategies and service provisions and in line with all other disability issues.
a. the consultation of and best interests of disabled children and adults being paramount

b. access, affordability and quality of such services is assured at all governmental levels for all children, adults and their families

c. ensure CBR is included in all community activities at all levels.

Footnotes

1. in relation to our comments with regard to article 9, 10, 13 of this draft convention

2. Community Based Rehabilitation covers the full rehabilitation and referral system at primary, secondary and tertiary levels. The term as such also reflects a more comprehensive, social and rights based notion and thus is preferred above the term rehabilitation which reflects a primarily medical notion

3. States Parties need to act upon the Recommendations of the WHO (2003) Report of International Review Community Based Rehabilitation www.int/ncd/disability.

JAPAN DISABILITY FORUM

<Article 21>Right to health and rehabilitation

Original Text of the Draft

(a) Provide persons with disabilities with the same range and standard of health and rehabilitation services as provided to other citizens, including sexual and reproductive health services

JDF’s proposed Amendment
The term “other citizens” shall be replaced by “other members of society.”

Reason
The proposed amendment is based upon the terminology used in “The Standard Rules on the Equalization of Opportunities for Persons with Disabilities” Article 2(3).

Original Text of the Draft
(k) Prevent unwanted medical and related interventions and corrective surgeries from being imposed on persons with disabilities

JDF’s proposal
Integrate Paragraph (k) to amended Paragraph (d).

Amendment of (d)
State Parties recognize the rights of persons with disabilities to determine by themselves whether or not to receive particular health and rehabilitation services after sufficient explanation and opportunities for questions. State Parties shall keep persons with disabilities, families and providers of such services well informed of such rights. Medical care, intervention by medical care and corrective surgery, which are not based upon self-determination made by persons with disabilities, shall be prohibited.

Reason
Health and rehabilitation services shall be provided, based upon self-determination made by persons with disabilities, for which the provision of adequate and appropriate information is very important. Since this revised text overlaps Paragraph (k), it shall be integrated into the amended Paragraph (d).

JDF’s proposed Amendment
Add new Paragraph (h).

Ensure to provide all health and rehabilitation professionals with the accurate and latest knowledge on disabilities and related technologies.

Reason

In the present situation, not only medical professionals but also health and rehabilitation professionals lack adequate knowledge on disabilities, which shall be improved.

LANDMINE SURVIVORS NETWORK

DRAFT ARTICLE 21 COMMENTS

Draft Article 21 addresses health and rehabilitation/habilitation, and as noted in Footnote 74, these issues are of a complexity and depth such that it may be more appropriate to elaborate them in separate articles, as is done in the UN Standard Rules. (Cf. UN Standard Rules on the Equalization of Opportunities for Persons with Disabilities, Rules 2 and 3) In whatever format these rights are addressed, it will be important to place a greater emphasis on the importance of choice throughout the article(s), so that people with disabilities are empowered to accept or refuse health care and rehabilitation of their choosing.

Draft Article 21(a) makes reference to “other citizens.” Given that the individual in question may not be a citizen of the relevant State Party, it may be preferable to utilize the broader term “other members of society.” (Cf. UN Standard Rules on the Equalization of Opportunities for Persons with Disabilities, Rule 2, para. 3)

Draft Article 21(c) relates to the proximity of services to a person’s community. Given the challenges that many people with disabilities face accessing transportation, the provision of services at the local level is of great importance. (Cf. UN Standard Rules on the Equalization of Opportunities for Persons with Disabilities, Rule 3, para. 5)

Draft Article 21(d) references the need for “counseling and support groups, including those provided by persons with disabilities.” During the Working Group meeting a number of members suggested that it would be valuable for “peer support” to be incorporated in this provision, ie. the concept of those with similar shared experiences offering each other mutual support. Although “including those provided by persons with disabilities” might encompass the concept of peer support, it might not necessarily do so. Therefore, the Ad Hoc Committee may wish to consider the explicit inclusion of that term in paragraph (d).

Draft Article 21(j) addresses issues of privacy related to the health or rehabilitation information of people with disabilities. Paragraph (j) requires health and rehabilitation professionals to inform people with disabilities of their “relevant rights.” Such language is rather vague. It may be more appropriate to state “inform persons with disabilities of these rights.”

Draft Article 21(l) again relates to the issue of privacy of information. This paragraph seems repetitive of issues already addressed in paragraph (j) and should perhaps be deleted.

Draft Article 21(m) addresses the involvement of people with disabilities and their organizations in the formulation and implementation of health and rehabilitation legislation and policies. These important concepts find precedent in the UN Standard Rules. (Cf. UN Standard Rules on the Equalization of Opportunities for Persons with Disabilities, Rules 3(7) and 14(2))

PHYSICAL DISABILITY COUNCIL OF AUSTRALIA

Health & Rehabilitation: Draft Article 21

This section needs to be strengthened in relation to equity of access regardless of culture.

REHABILITATION INTERNATIONAL

Article 21. Right to Health and Rehabilitation
Rehabilitation International is joined in this intervention by Disabled People International (DPI), Landmine Survivors Network, World Union for Progressive Judaism, European Disability Forum, Inclusion International, World Federation of the Deaf, World Blind Union.

Our Core Proposal – Separate the Right to Rehabilitation from the Right to Health

Like others we strongly advocate the separation of the right to health from the right to rehabilitation. We believe that rehabilitation and health are wrongly - and indeed dangerously - conflated into one draft Article in the existing Working Group text.

We therefore propose a separate Article on the Right to Habilitation and Rehabilitation. We would therefore propose deleting all references to the term ‘rehabilitation’ in Article 21 and moving them to a new and differently constituted Article 22.

This intervention focuses first on the proposed ‘right to rehabilitation’ and secondly on the ‘right to health.

Our Operating Philosophy of Rehabilitation – Optimizing Personal Capacity for a Life of Participation and Choice.

Rehabilitation is eloquently described in the Standard Rules as:

A process aimed at enabling persons with disabilities to reach and maintain their optimal physical, sensory, intellectual, psychiatric and/or social functions, thus providing them with the tools to change their lives towards a higher level of independence.

We would propose that the same or equivalent formula of words should be used to describe and introduce the right to rehabilitation in the draft text.

Such a broad approach as the one adopted under the Standard Rules is echoed in many regional standards adopted throughout the world and should be the one that animates our understanding of rehabilitation in the convention.

Rehabilitation Includes Habilitation

We consider important that the term ‘rehabilitation’ should be clearly understood as including both habilitation and rehabilitation. Habilitation applies to those born with a disability. Rehabilitation applies to those who acquire a disability.

Habilitating or rehabilitating persons with disabilities to the optimum of their capacities should never detract from the overarching obligation to re-order society to create more equal access. Rather, the core aim of the convention should be to ‘redesign society to allow for the integration of persons with disabilities rather than to predicate their integration on their realignment with society’ (Prof Stein).

Three Reasons Why Rehabilitation be Separated from Health

There are at least four sets of reasons why such a separation should occur.

First of all, it is clear that both habilitation and rehabilitation aim at a broader goal than that of health – namely equipping people with the wherewithal to function to the maximum of their own personal capacity.

Secondly, rightly or wrongly, to depict rehabilitation against the backdrop of health will only serve to heighten the fear of persons with disabilities that those who exercise authority will impose rehabilitation and might now be able to claim the imprimatur of international law. This fear is wholly understandable given the experiences of many persons with disabilities to date throughout the world. The so-called medical model of disability may well be a parody of the true medical mission which is of course to honour and serve human beings. But we cannot ignore the legacy of the past. It would therefore be wiser to separate out habilitation and rehabilitation in order to underscore the primacy of the person as against the power of the expert over the process. This, after all, is what the shift to the rights-based perspective on disability is supposed to be about.

Thirdly, no matter how broadly defined (and we do support a broad definition of health), the right to health does not and can never adequately capture the full range of rehabilitation and habilitation services required by persons with disabilities. These services range far beyond the traditional health field to include functional rehabilitation, educational rehabilitation, vocational rehabilitation, employment rehabilitation, etc.

Fourthly, there is an added danger in telescoping the right to health with the right to rehabilitation. It could inhibit the capacity of any future monitoring body from making an accurate assessment of the full spread of rehabilitation services.

Two Reasons why Rehabilitation can be Properly described as a Human Right

Can rehabilitation be properly denominated as a right under this convention? We are convinced that it can and should for at least two sets of reasons.

First of all, at the level of ideas and values, it is obvious that the philosophy of rehabilitation contained in the Standard Rules both fits with, and indeed can be shown to flow from, the fundamental value of personal autonomy or individual self-determination. We remind delegates that the United Nations Commission on Human Rights has broadly equated violations of the Standard Rules with violations of human rights (Resolution 1998/31).

This concept of autonomy undergirds all existing human rights conventions. It is one of the golden threads that makes human rights doctrine come to life. Indeed, it is one of the core principles put forward by the European Union as a foundation stone of this convention. In sum, the recognition of rehabilitation as a right is, in effect, merely a logical development of the concept of autonomy - one that seeks to make that concept real in the specific context of disability.

Secondly, the right to rehabilitation already finds some expression under existing international and regional law. At a regional level and since 1961, Article 15 of the European Social Charter – which is a binding pan-European convention in the field of economic, social and cultural rights - specifically contains a Right to Rehabilitation. More recently (1999), rehabilitation is also specifically mentioned as one of the priority areas in Article III 2 (b) of the Inter-American Convention on the Elimination of all Forms of Discrimination against Persons with Disabilities. Significantly, neither Article 1`5 of the European Social Charter nor Article III 2 (b) of the Inter-American Convention speaks of rehabilitation alongside a right to health. The latter contains useful language to the effect that rehabilitation, inter alia, ensures the ‘optimal level of independence’ for persons with disabilities. Likewise, at the global level, Article 23 of the Rights of the Child Convention contains elements of a right to rehabilitation. In sum therefore, it makes sense to universalize the right to rehabilitation beyond its various regional expressions and beyond the field of childrens’ rights in favour of all persons with disabilities. To do so would merely build on existing international law.

The ‘Right to Rehabilitation’ should be Contained in one Article rather than Scattered in the Text

An argument might well be made that there is no need for a separate article on rehabilitation if the relevant ingredients of it were scattered among the relevant substantive rights dealing, for example, with work and education. We disagree.

Why scatter and disperse the elements of such a foundational right when it can be given the normative prominence it truly deserves in a composite article?

Besides which, it would be more textually elegant to gather together all the specific instances of the right into one composite article in order to ensure that its various elements are read properly in light of the underlying philosophy of freedom and choice.

The Need to Ensure that Rehabilitation is Never Imposed Against the Will of the Person

Since rehabilitation, properly understood, is concerned primarily with enhancing the person’s capacity for a life of freedom and choice, it follows, inevitably, that rehabilitation should never be imposed against the wishes of persons with disabilities. Too many persons with disabilities have suffered in the past because their own wishes and desires were studiously ignored by those in authority.

We Propose the Following Text on the Right to Rehabilitation

The relevant regional standards including, for example, Recommendation R(92) 6 of the Council of Europe as well as Rule 3 of the UN Standard Rules should also be used as a basis for discussing content. The relevant part of this Recommendation contains useful language on the rehabilitation rights of children (IV.2.7).

We propose that specific language should be added on the particular rehabilitation rights and needs of women and girls with disabilities.

We are of the view that the resource that persons with disabilities represent to each other in the context of rehabilitation should be emphasized through the acknowledgment and nurturing of peer support in the text. We view rehabilitation in the community as an important tool in the advancement of habilitation and rehabilitation.

With respect to the content or the basic ingredients of the proposed right to rehabilitation we therefore propose the following as a starting point in discussion.

“Persons with disabilities have a right to rehabilitation in order to enable them to reach and sustain their optimum level of functioning and to live an independent life of their choosing in the community. Rehabilitation shall be understood as including habilitation as well as rehabilitation.

Toward this end States parties undertake:

1. To maintain and develop a comprehensive and integrated range of functional rehabilitation services including, occupational, vocational, and educational, and associated assistive technology and to ensure that such rehabilitation is in alignment with medical rehabilitation.

2. Take steps to ensure that information with respect to rehabilitation services is widely available and accessible to all persons with disabilities including their families.

3. To ensure that access to such services will be open to all persons with disabilities without discrimination of any kind and particularly without regard to the severity of the disability.

4. To take steps to ensure that the specific rehabilitation needs of women, girls, children and the elderly with disabilities are appropriately addressed in order to ensure respect for their dignity and particular needs.

5. To base the design of rehabilitation programs on the actual needs of the person through a process of individualised assessment and, towards this end, to actively involve the person concerned in the design, organization and periodic review of their program.

6. To prohibit the imposition of any program of rehabilitation against the wishes of the person concerned.

7. To take steps to ensure that rehabilitation programs are available locally in the individual’s own community in order to ensure that the rehabilitation process creates a meaningful pathway into a life of full participation and inclusion in accordance with personal choice.

8. To involve persons with disabilities and their representative organizations in the rehabilitation process.

9. To ensure that all personnel involved in rehabilitation are sensitised to the rights and needs of persons with disabilities.

Observations Regarding the Right to Health

We believe the right to health under the exiting Article 21 can also benefit by breaking the link between it and rehabilitation. Consequent upon breaking the link, all references to rehabilitation in the existing Article 21 should be deleted.

With respect to the right to health we are of the view that separate and clear language should be crafted to cover the highly specific health care needs of women and girls with disabilities particularly with respect to ‘sexual and reproductive health services’ as that term is used in draft Article 21 (a).

We propose amending paragraph (j) in order to ensure that a refusal to opt for certain health care services can never be used as a justification to deny other services. We therefore propose that the words ‘with respect to each service offered’ should be added after the words ‘informed consent’.

We are greatly concerned by the rationing of health care resources and services on the basis of disability. Our concern may already be met by the existing text of Article 21 if the term ‘without discrimination on the basis of disability’ in the introductory paragraph, when taken with the reference to the ‘same range and standard of health…as provided other citizens’ as used in sub-paragraph (a), is understood to mean a prohibition of discrimination with respect to the rationing of health care services and resources.

However, and for the sake of clarity, it might be worthwhile spelling this out with more particularity along the following lines:

(xxx) prohibit the discriminatory allocation of health care resources and treatment based on disability.

WORLD BLIND UNION

RIGHT TO HEALTH AND REHABILITATION

Article 21:
Rehabilitation must be separated from health and divided into two separate articles. It is time to see that rehabilitation as a social and human right, which appear after the health aspect of a disability.

There is a need to focus on what disability specifically is and try not to spread it out to all kind of aspects of health and rehabilitation. The focus is missing.

Habilitation should be mentioned on its own since it differs from rehabilitation. Habilitation is gaining skills that people (young persons) have not previously had, rather than the regaining of skills lost. A new definition might be needed. Habilitation could be referred to Article 3, Definitions.

Access to health insurance by PWD without discrimination must be targeted as a right.

Community based rehabilitation (CBR) programs should be ensured, including the working in partnership with local communities and families.

Para (d), should be deleted. No service provided to the public should be offered on a voluntary base for PWD.

Para (e), should be deleted. WHO or other UN organs could deal with prevention of disabilities, it should not be dealt with in this convention.

Para (f), should be deleted. Bio-medical, genetic, and scientific research, cannot bee seen as a right for PWD in this kind of Convention texts.
Para (g) and (h), continue to see health as part of rehabilitation, which is a level which would have been abundant for long ago.

Para (j), to share information in the health sector about a person with a disability without the consent from the person in question, is a right could be spelled out here or be formed as a praxis by a Monitoring Committee.

Para (k), no forced medical intervention and forced institutionalisation should be permitted.

Para (l), no forced medical intervention and forced institutionalisation should be permitted on the ground of disability.

Para (m), could be referred to in Article 4, General Obligations.

WORLD NETWORK OF USERS AND SURVIVORS OF PSYCHIATRY

Draft Article 21

(j) ensure that health and rehabilitation services provided to persons with disabilities, and the sharing of their personal health or rehabilitation information, occur only after the person concerned has given their free and informed consent ADD: with respect to each service offered , and that health and rehabilitation professionals inform persons with disabilities of their relevant rights;

WNUSP COMMENTS: The addition in paragraph (j) is necessary to prevent the practice of “bundling of services” which effectively deprives people with disabilities of the right to free and informed choice and protection from unwanted interventions.

Intervention made at the Third Session:

Article 21 - RIGHT TO HEALTH AND REHABILITATION

• Full range of health care without discrimination – in institutions of all kinds people are deprived of medical attention, and doctors may see all health problems as related to the disability so when they see a psychiatric diagnosis they ignore physical health complaints and vice versa. This is in chapeau and para a of article 21.

• For us, the issue is not so much separating health and rehabilitation as having access to diverse options for services. Much of what we want, such as peer support, psychotherapy for all types of distress including schizophrenia and psychosis, and counseling, may be included under rehabilitation – but it should be understood that this is a primary service for people experiencing psychosocial crisis or distress, equivalent to primary medical care. For us, medical treatment by psychiatry is one option among many, and should not be emphasized. We support the proposal to separate health and rehabilitation because it challenges the medical model of disability and will increase the diversity of options available to us.

• Having diverse options is only meaningful if we have the right to choose among them and not have treatments or interventions imposed on us against our will. For this reason, it is necessary to include provisions in both the articles on health and on rehabilitation requiring free and informed consent for each service offered (as proposed by New Zealand), to prohibit unwanted interventions (addressed in para k) and to ensure access to and confidentiality of personal records and information (second part of para j, and proposed consolidation and amendment by New Zealand). Informed consent should be understood within a context of supported decision-making as discussed under article 9 to preserve the individual right of choice without making it subject to traditional tests of legal capacity.

• One further item is the need to explain “respite places” included in para d. For people with psychosocial disabilities, this can be an important alternative to psychiatric hospitalization in a time of crisis.