The question of the legal capacity of persons with disabilities was one of the most controversial topics in the negotiations that led to the Convention. Evidence of this is that during one of the sessions, the eighth, the Convention was approved with a footnote to the relevant article that read, "In Arabic, Chinese and Russian, the term 'legal capacity' refers to 'legal capacity for rights', not the 'legal capacity to act'". Finally, after a complex negotiation process, it was decided to suppress the footnote referred to above. In general terms, the discussion centered on the adoption of two possible approaches: the first, and older of the two, adopted the "model of substitution in the taking of decisions" with its implied distinction between the capacity for rights and the capacity to act, thus perpetuating the condition of guardianship (or the equivalent status in each of the States Parties) as an essential instrument. The other, a really novel view, in accordance with the social model, adopted the "model of assistance in the taking of decisions". This meant that a new legal status would have to be found, the basis of which would be providing support in the taking of decisions instead of substituting the
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Abstract: Article 12 of the Convention on the Rights of Persons with Disabilities provides that persons with disabilities are entitled to full legal capacity on an equal basis with others and obliges State Parties to provide access to the support that they may require exercising this legal capacity. This paper analyzes the main implications of this Article and its impact on Qatar´s legal system, focusing on the general regulation of legal capacity and provisions in the domain of Private Law, including Family Law. We examine how Qatar´s legislation needs to be adapted to the new paradigm of the CRPD, overcoming preconceptions based on the medical model and assistencialism, which is focused on protection, and moving towards the social model and the human rights approach, aimed at promoting the autonomy of persons with disabilities. To comply with Article 12, Qatar must review the legal provisions that allow the deprivation or restriction of legal capacity on the basis of disability and that require “be[ing] of sound of mind” as a condition to perform legal acts or to exercise rights. Qatar must also take action to replace regimes of substituted decision-making with supported decision-making – extending some support mechanisms available in current legislation – and to ensure the respect of the person’s will and preferences.
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Qatar ratified the CRPD in 2008. Qatar should be confident that several factors place the country on a solid footing to face the challenges of fully implementing the CRPD. Qatar's leadership has shown the moral sensitivity and political willingness to further the rights of persons with disabilities in accordance with the Convention. This commitment is evidenced by the reforms already implemented to enhance liberties and human rights in general, epitomized by the human rights offices in the Ministries of Interior and Foreign Affairs, together with the National Human Rights Committee, created in 2002. More specifically, the Ministry of Labor and Social Affairs has a directorate dedicated to the elderly and persons with disabilities, to protect the rights of these vulnerable groups. These are impressive structural efforts, which create an auspicious context for the implementation of the CRPD.
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A disability-neutral preventive detention statute further poses particular problems for countries that are signatories to the European Convention on Human Rights. Article 5 of the ECHR prohibits deprivations of liberty except in specific circumstances, including the ‘lawful detention of … persons of unsound mind’. 75 No other exception in Article 5 could be used to justify a preventive detention statute, and for States Parties to the ECHR, the High Commissioner’s generalist approach cannot be implemented. To comply with both Conventions, if the prevailing interpretations are correct, it would seem that preventive detention of people with mental disabilities is not legally possible. People with mental disabilities could admit themselves into hospital if they wished to do so, but there would be no mechanism to compel them to do so. This would be a hard sell to governments, to medical stakeholders, to many family carers, and to broader society. Certainly, a great deal more can be done by way of engagement with people with mental disabilities on a voluntary basis, but the overwhelming social perception at this time is that in hard cases, this may not be enough. If people are actually acting in a fashion dangerous to others, criminal law could presumably be invoked to control them; but this will result in a detention in a police cell, gaol or prison – not a particularly humane place to detain someone with a mental disability. It is also fair to ask whether in these circumstances it really makes sense to process someone through the criminal
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In R.P. and others v. the United Kingdom  the European Court decided on the legitimation of the appointment of Official Solicitor to represent a mother with learning disabilities in a child care proceeding, in relation to the ability of the mother to provide the necessary care to her child, who was a premature baby and had a number of serious medical conditions requiring constant care. The Court decided the case on Article 6.1 of the European Convention on Human Rights, right to a fair trial in civil proceedings. However, the Court referred to the Convention on the Rights of Persons with Disabilities, in particular Articles 1, 5, 12, 13 and 23 59 . Although it was not named Article 7, Article 23, as we said above, is directly linked with Article 7. In this case, the link is because Article 23.2 and 4 establishes that the best interests of the child shall be of the most importance in order to decide with regard to guardianship, wardship, trusteeship, adoption of children or similar institutions; and also that the separation of the child from his or her parents against their will can only be done if it is necessary for the best interests of the child. Thus, although in this case were directly involved other Articles of the Convention, it is important to note that the paramount importance of the child bests interests does that this principle always has a decisive influence when the decision affects a child. In this line, the European Court asserted “…However, the Court accepts that the best interests of K.P. [K.P. was the child who was born prematurely] were the touchstone by which the domestic courts would assess the case. Thus, in determining whether a case was arguable or not, it was necessary for the Official Solicitor to consider what was in K.P.’s best interests…” 60 .
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In many ways, the argument for ratification of the CRPD is less abstract than the argument against it and therefore more credible on its face. On the most basic level, those who support ratification state that it is important for the U.S. to finish what it started. As a leader in the implementation of the CRPD and as an outspoken leader for disability rights, the U.S. should adhere to the recommendations that it helped create. Under this view, ratification would not require any drastic legal changes—the CRPD requires States Parties to consider whether their existing domestic laws satisfy CRPD requirements, or if any new measures are required for compliance. 149 In light
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Legal capacity challenges the contingent link between decision-making capacity and legal agency under mental capacity regimes. Supportive mechanisms must be available to individuals with impairments to enable them to exercise their agency and secure both formal and substantive equality. Decisional support implies a range of macro- and micro-duties, extending from state policies and legislative changes, to interpersonal advocacy and networks of support . Most importantly, Article 12 contains the crucial clause that the “exercise of legal capacity” must be ensured to “respect the rights, will and preferences of the person” . This signals the rejection of substituted decision-making mechanisms where other individuals can make best interests decisions on behalf of another with a finding of mental incapacity. According to the General Comment issued by the Committee on the Rights of Persons with Disabilities, the principle of “best interests” is non-compliant with the “will and preferences paradigm” and violates the right of individuals with impairments to enjoy legal capacity “on an equal basis with others” (, para. 21). There are flexible and strict interpretations of the “will and preferences paradigm”. The General Comment signals a strict interpretation that rejects any justification for best interests’ decision-making on behalf of individuals with impairments. Respect for the legal capacity of disabled individuals is coextensive with deference to their rights, will and preferences with regards to their choices about health, treatment and care. In short, the subjective preferences of the individual are prior to any other welfarist considerations or third-party obligations to intervene. Michael Bach and Lana Kerzner in their report for the Ontario Law Commission offer a more flexible interpretation of Article 12, proposing three decision-making statuses. Legally
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Notwithstanding the merits of such interpretations, sufficiently developed concepts and legislative models are not in place for legal reform to reflect the new paradigm. Which legal powers should be entirely abolished and which maintained in a fashion that makes them applicable to the population as a whole rather than just to people with mental disabilities? It does seem that current laws that allow intervention to stop people with mental disabilities from injuring themselves but do not permit such intervention for people without disabilities are discriminatory; but it may be the case that we would wish to amend the law not to abolish the power but, in some circumstances, to extend it to the population as a whole. No thought has been given to what those circumstances might be, how to define them, or indeed if such a way forward is desirable at all. Similarly, while it seems obvious that many laws relating to mental capacity must change radically, there is no consensus as to what a new law would look like. Certainly, any express reference to mental disability as a prerequisite to a finding of incapacity seems in violation of the CRPD, but can a capacity-based system of law that is disability-neutral on its face be developed in such a way as not to affect people with mental disabilities disproportionately, and therefore avoid indirect discrimination? Thinking in such areas is in its infancy, and even the systems that have been developed, such as that by Bach and Kerzner, 11 have not been subjected to field trials; we do not know what will happen if we implement them.
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It might nonetheless be that education systems cannot be adapted to all disabled people. Not only are there limits to the steps that can be taken to achieve inclusive education, but a ‘universal design’ can be very difficult to apply in the area of education. There are limits to the extent to which teaching methods and skill evaluation, not to mention the school curriculum, can be differentiated in single settings. Disproportionate consequences can also be attached to removing certain obstacles to participation in the general education system. Inclusive education, therefore, may involve costs that are unbearable or detrimental to others. This concerns especially persons with intellectual disabilities. 94 It would be hard to imagine having education systems where maths or written language would no longer be taught. 95 The price for children who are able to acquire those skills would be too high. Still, this does not mean that those who cannot achieve some basic mathematical or literacy skills must necessarily be segregated. States must first fulfil their duty to provide ‘reasonable accommodation’ to disabled people. They must examine the possibility of adopting individual measures that respond to children’s individual needs so as to allow them to attend mainstream schools. If there are constrains in adaptations that can be made, ‘ reasonable accommodation ’ can thus assist to make education inclusive to the greatest possible extent. Such accommodation may help disabled children to participate in the general education system albeit differently with regard to some, but not all, learning activities. However, if the balance results in ‘unreasonableness’, these children may temporarily be better off outside the general education system in the event that inclusive education has not yet been fully achieved in a given state. Although this would for sure amount to a violation of article 24 of the CRPD and therefore must be avoided by any means, the opposite might not be any better, since it would result in the marginalisation of disabled children in mainstream schools. When the aim remains to make these children reach the norm and separate them from others in order to achieve this aim, the result will be some form of segregation in such schools but will not be inclusive education according to the Convention. Forcing children to be educated in mainstream schools might thus do more harm than good, and, as argued by Marcia Rioux and Paula Pinto, end up being ‘a charade of inclusion’. 96
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These four principles account for distinct facets of the principle of equality, which entails assuming that every person is of inestimable value as human beings, and that the said value is the same for everyone, regardless of any personal condition, beyond any physical, mental, intellectual or sensory diversity. At this moment, some very complex issues come into play, which have been summarized by means of framing this group of people who suffer situations of vulnerability and within a description which is not easy to counteract, which can be summarized by saying that people with disabilities are socially excluded. Hence, we can assert that every access point to daily life structures -education, employment, family, social interaction, etc. - is mainly established with respect to the norm -in this case, that of those who are not disabled-. In this connection, as normally there is no adaptation foreseen as for deviations or differences with respect to the chosen norm, differences provide the basis for subtle (and sometimes not that subtle) discriminations (Degener & Quinn, 2000). And even though there are various manners of dealing with the right to equal treatment and fighting against discrimination, within the Convention there is a consensus about the choice of this right in its version of equality of opportunity (CAMPOY CERVERA, 2005).
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Minkowitz (2006, 2011) argues that involuntary treatment is ruled out entirely. She argues Article 12, that persons shall ‘ enjoy legal capacity on an equal basis with others in all aspects of life ’ , by making no explicit reference to ‘ substitute decision making ’ in any of its subsec- tions, rejects it. Earlier drafts of Article 12 did make reference to substi- tute decision making, but these were dropped because agreement could not be reached about the implications of its inclusion.Minkowitz (2011) states: “ A provision recognizing substituted decision ‐ making would have overcome the general principle of equal legal capacity, and the obligation to ensure that measures related to legal capacity respect the will and pref- erences of the person, constituting an explicit exception. In the absence of such an exception, the plain meaning must prevail without reading in the exception that was rejected ” . She also interprets Article 14 as did the Commissioner for Human Rights in the quotation given above. Article 17, in recognising that persons with disabilities have the ‘ right to respect for physical and mental integrity on an equal basis with others ’ , Minkowitz argues, prevents treatment being given without consent. She points out that the CRPD Reporting Guidelines for Article 17 require State Parties to report on measures taken to protect persons with disabilities from med- ical (or other) treatment given without free and informed consent. The ‘ Concluding Observations ’ from the Committee on Spain and Tunisia ap- pear to support her point. Arguing further, Minkowitz (2011) points out that Article 25(d) requires that health professionals ‘ provide care of the same quality to persons with disabilities as to others, including on the basis of free and informed consent … . ‘ , and that reading Article 25 in con- junction with Article 12 indicates that the “ consent of third parties is not substituted for that of persons with disabilities, who at all times enjoy the right to exercise legal capacity according to their own will and preferences ” .
Article 2 United Nations Convention on the Rights of Persons with Disabilities states that persons with disabilities is “Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others”. Next, it was adopted by Article 1.1 Law No. 8 of 2016 on Persons with Disabilities. It states in Indonesian, that “Penyandang Disabilitas adalah setiap orang yang menyandang keterbatasan fisik, intelektual, mental, dan/atau sensorik dalam jangka waktu lama yang dalam berinteraksi dengan lingkungan dapat mengalami hambatan dan kesulitan untuk berpartisipasi secara penuh dan efektif dengan warga negara lainnya berdasarkan kesamaan hak”. Or in English is “persons with disabilities is “Persons with disabilities include those who have long- term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others”. Based on the definition, we can form it into several elements. These elements are: first, impairments on mental, intellectual or sensory; second, in interaction with various barriers may hinder their full and effective participation in society; finally, on an equal basis.
Results and conclusions: The AP curve for the disabled population increased rapidly at the beginning. The summary score was 13.21 in the performance at 90 percentile for the general population and 82.61 score for disabled adults that the similar gap in every domain, its means that there are significant functioning difference and health equality in general adults population and adults with disabilities. This presents a substantial challenge for both the government and the whole population of Taiwan, to begin considering how to reduce the gap in AP functioning and promote equality for people with disabilities, using social welfare policy. It is important to make sure disabled people have the same rights to be included in society as anybody else and better access to things in all areas of life that are according to Convention on the Rights of Persons with Disabilities (CRPD).
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In service to the FAIR Education Act (2012) and the awareness-raising mission of the Convention on the Rights of Persons with Disabilities (2008), this project reviews historical and educational literature about disability in the United States and provides a curriculum guide for teaching Human Rights Education (HRE) and disability studies (DS) at the high school level in California. This project traces the historical development of deficit attitudes toward disability back to the colonial era, uncovering the dichotomy between the vast resources in DS and the ableist omission of disability from K-12 curricula. Survey data and interviews further show how teachers lack the resources or knowledge to incorporate disability history into their syllabi despite their willingness to engage in the topic. In response to participants’ expressing the need for primary source materials and professional development resources related to disability, “Reimagining America: Reading U.S. History through Human Rights and Critical Disability Studies” was created, containing a glossary of key terms, an accessibility checklist, and a
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Although the Convention on the Rights of Persons with Disabilities (CRPD) proclaims the right to inclusive education, and much attention is being given to the goal of inclusive education in debates on human rights , there are doubts as to whether this right has led to a new direction in policy making. The under - researched question is: why is there so much opposition to the implementation of the right to inclusive education? This article examines the question by distinguishing between both the concept and practice of inclusive education. Using a specific interdisciplinary approach in order to critically analyse a legal norm, the article looks into the very meaning of inclusive education by utilising some central conclusions from disability studies to appraise the ideal of inclusive education, and seeks to resolve related challenges by drawing upon political philosophy to investigate pragmatic solutions to the obstacles to inclusive education. This article claims that it is thereby possible to incorporate the element of actual achievability into such an ideal.
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restrictions on their personal freedoms (Baker & Allen 2012; Deveau & McDonnell 2009). This paper uses a vignette that depicts practice that I have observed whilst visiting a number of schools: the taking of a child’s hand to lead him/her away from where the child wants to be to where the teacher desires the child to be. The purpose of the vignette is to support reflection on the relationship between positive handling, locations of the ‘problem’ of behaviour and the negation of the rights of disabled children and young people. Prouty’s (1976) principles for pre-therapy from the field of counselling are then evaluated for their potential for supporting teachers with coming to more developed understandings of why behaviours might occur. Current responses to behaviours often infringe disabled people’s rights under the United Nations Convention for the Rights of Persons with Disabilities (CRPD) (United Nations 2007). It is suggested here that the focus of Prouty’s work on enabling
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Abstract: The Convention on the Rights of Persons with Disabilities presents a social approach to disabilities. In accordance with this conception, the origin of the discrimination suffered by persons with disabilities is mainly social because we have designed our society without universal access for everybody. There is a normality criterion, based on physical capabilities, intelligence, race and gender that excludes many people from that canon. The different contemporary liberal theories of justice have discussed disabilities thinking about how the State could compensate brute luck. In this context, does universal basic income play some role? Van Parijs in Real Freedom for All defends a unanimous criterion to compensate for brute luck. That compensation would be made before distributing an equal basic income among everybody. In this paper, UBI will be studied in the context of the debate about rights of persons with disabilities. Firstly, the argument given by Van Parijs will be discussed because the unanimous requirement does not fit with a social understanding of disabilities. Secondly, if we consider a right to UBI, it is necessary to study which role this right can play in the life of people with disabilities and if we can say that this right has a universal design. In this point, it will be studied whether UBI can establish some type of indirect discrimination against people with disabilities and if so, which type of reasonable accommodation would be necessary to eliminate that discrimination.
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India became a state party to the United Nations Convention on the Rights of Persons with Disabilities [UNCRPD] by signing and ratifying it in March and October 2007 respectively. Thus, the enactment of this new piece of legislation, namely, the RPD Act, 2016 has happened as a part of the larger harmonization process undertaken by the Government of India in fulfillment of its solemn commitment and international obligation arising out of India becoming a state party to the UNCRPD. In order to comply with the UNCRPD, India has repealed PWD ACT, 1995. (Equal opportunities, protection of rights and full participation) and enacted Rights of Persons with Disabilities (RPwD) Act, 2016.
Abstract. Women are the parties who have potential chance to be victims; this problem is regardless of patriarchy culture which is still very strong in the community. Women are considered vulnerable, moreover those who have dissabilities. Disability women are less able to protect themself from the violence. These problems are related to access to have the rights in justice for those disability women who become the victims of violence. This research used primary data and secondary data with qualitative research through juridical sociological approach. The violence which often occurs to women could be physical, verbal, sexual, as well as psychic violence. The disability women as victims get less access to justice and protection as set in regulations because they are lack of understanding from law enforcer about disability. Moreover, there is no infrastructure that can support the rights of disability women.
Progress towards the health-related Millennium Development Goals (MDGs) has, arguably, been achieved through being able to help those with easier access to healthcare. Subsequent gains will be dependent on addressing the challenges faced by a range of vulnerable groups, who have less access to healthcare. Vulnerable groups are “social groups who experience limited resources and consequent high relative risk for morbidity and premature mortality” (Flaskerud & Winslow, 1998, p.69), and this may include children, the aged, ethnic minorities, displaced people, people suffering from some illnesses, people with disabilities and others. Importantly, Eichler and Burke (2006) have recognized that the social discrimination and bias that arises, based on such categories, is the result of social hierarchies: similar exclusionary practices disadvantage and disempower different groups, undermining their human rights and their rights to health, other social services and to social inclusion – to being full participants in society. Burke and Pupulin (2009, p.7) argue that there is an urgent need for “building equitable, more inclusive societies based on respect, equality, human rights and the full participation and benefit of all people”. While the number of people with disabilities is increasing globally, adequate disability policies, in conjunction with their implementation and enforcement, remain globally largely undefined (Wiman, Einar & Westland, 2002).
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