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Article 25 [Health]

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The United Nations Convention on the Rights of Persons with Disabilities

Abstract

The CRPD is the first United Nations human rights treaty that was adopted in the twenty-first century. The Convention aspires “to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity” (Article 1) and marks a turning point in the approach toward disabilities. Indeed, since its adoption, it has played a vanguard role as to the promotion and protection of disability rights, as well as a driving force toward legal change at EU and domestic levels.

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Notes

  1. 1.

    The Convention on the Rights of Persons with Disabilities was adopted on 13 December 2006 and entered into force on 8 May 2008 together with its Optional Protocol.

  2. 2.

    On the Convention in general, Marchisio et al. (2010).

  3. 3.

    See Article 1 [Purpose] in this Commentary.

  4. 4.

    The EU, in its capacity as a regional integration organization within the meaning of Article 44 of the CRPD, has been a Party to the Convention since 2011.

  5. 5.

    The World Report on Disability was adopted jointly by the World Health Organization (WHO) and the World Bank in 2011. The text is available at the following address: http://whqlibdoc.who.int/publications/2011/9789240685215_eng.pdf?ua=1. Accessed 25 Sept 2016.

  6. 6.

    Arnardóttir and Quinn (2009), p. 17.

  7. 7.

    The WHO Constitution was adopted by the International Health Conference held in New York from 19 June to 22 July 1946, signed on 22 July 1946 and entered into force on 7 April 1948.

  8. 8.

    Article 25 of the UDHR states that “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.”

  9. 9.

    For instance, the right to health is contained in sectorial treaties like the CERD of 1965 (Article 5), the ICESCR of 1966 (Article 12, para. 1), the CEDAW of 1979 (Article 12, para. 1), the CRC of 1989 (Article 24, para. 1).

  10. 10.

    Alston (1994), p. 69.

  11. 11.

    See Buchanan (1984).

  12. 12.

    CESCR, General Comment No. 14, ‘The right to the highest attainable standard of health’ (Twenty-second session, 2000), UN Doc. E/C.12/2000/4 (2000), reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI/GEN/1/Rev.6 at 85 (2003).

  13. 13.

    Murphy (2013), p. 43.

  14. 14.

    Acconci (2011), p. 61.

  15. 15.

    Tobin (2012), p. 185.

  16. 16.

    The social model of disability, which can be considered as the ethical foundation of the CRPD, establishes that ‘disability’ is not an attribute located within an individual, but rather it ‘results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others’ and that with support of varying degrees, these significant barriers can be counteracted. For more on this subject, Hughes and Paterson (1997), p. 325.

  17. 17.

    Frieden (2005).

  18. 18.

    MacLachlan et al. (2011). On health and discrimination of persons with disabilities, also Doebbler (2007), p. 51.

  19. 19.

    Mitra et al. (2011).

  20. 20.

    Lord et al. (2010), p. 564.

  21. 21.

    The Declaration identifies several disadvantaged/vulnerable groups targeted by the development goals, such as women, pregnant women, children, and people affected by an infectious disease like HIV, malaria, or tuberculosis but not disabled persons.

  22. 22.

    Resolution adopted by the UNGA on 18 December 2014 on the report of the Third Committee (A/69/480) 69/142 “Realizing the Millennium Development Goals and other internationally agreed development goals for persons with disabilities towards 2015 and beyond.” The lack of any reference to persons with disabilities has also been an issue of concern of the Conference of States Parties (COP) of the CRPD, foreseen by Article 40 of the Convention. See Report of the 8th Session of the Conference of States Parties to the Convention on the Rights of Persons with Disabilities, New York: 9–11 June 2015 (para. 12), http://www.un.org/disabilities/default.asp?id=1625, Accessed 25 Sept 2016

  23. 23.

    Groce and Trani (2009).

  24. 24.

    Declaration on the Rights of Mentally Retarded Persons, GA Res. 2856 (XXVI), 26 UN GAOR Supp. (No. 29) at 93, UN Doc. A/8429 (1971).

  25. 25.

    Principles for the Protection of Persons with Mental Illnesses and the Improvement of Mental Health Care, UNGA Res. 46/119, 46 UN GAOR Supp. (No. 49) at 189, UN Doc. A/46/49 (1991).

  26. 26.

    Declaration on the Rights of Disabled Persons, GA Res. 3447 (XXX), 30 UN GAOR Supp. (No. 34) at 88, UN Doc. A/10034 (1975). Article 6 of the Declaration stated that “Disabled persons have the right to medical, psychological and functional treatment.”

  27. 27.

    The Standard Rules affirm that persons with disabilities have the right to “provision of the same level of medical care within the same system as other persons.” Therefore, in communities in which all persons must travel a far distance from their community to receive healthcare, persons with disabilities must expect to encounter the same disadvantage. Also the CESCR, in General Comment No. 5 devoted to disabled persons, establishes the obligation to adopt positive measures in order to reduce the structural disadvantages that affect them (CESCR, General Comment No. 5, Persons with disabilities (Eleventh session, 1994), UN Doc. E/C.12/1994/13 (1994)).

  28. 28.

    General Comment No. 14 of the CESCR already stated that “The right to health contains both freedoms and entitlements. The freedoms include the right to control one’s health and body, including sexual and reproductive freedom, and the right to be free from interference, such as the right to be free from torture, non-consensual medical treatment and experimentation (para. 8).”

  29. 29.

    Hendriks (2007), p. 273. The principle of non-discrimination in the health sector—one of the four “interrelated elements” that define the right to health—has been specified by General Comment No. 14 of the CESCR as “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.”

  30. 30.

    In this sense, Minkowitz (2007), p. 405; Szmukler et al. (2014). See also two Concluding observations of the CRPD Committee: in the first, the Committee recommended to ‘Repeal provisions that authorize involuntary internment linked to an apparent or diagnosed disability’ (Concluding observations on the initial report of Spain, CRPD/C/ESP/CO/1, 19 October 2011, at para. 36); in the second, it called on “laws permitting involuntary treatment and confinement, including upon the authorization of third party decision-makers such as family members or guardians are repealed” (Concluding observations on the initial report of China, CRPD/C/CHN/CO/1, 15 October 2012, at para. 23).

  31. 31.

    The Australian declaration states that “Australia […] declares its understanding that the Convention allows for compulsory assistance or treatment of persons, including measures taken for the treatment of mental disability, where such treatment is necessary, as a last resort and subject to safeguards.” The Norwegian declaration affirms that “Norway declares its understanding that the Convention allows for compulsory care or treatment of persons, including measures to treat mental illnesses, when circumstances render treatment of this kind necessary as a last resort, and the treatment is subject to legal safeguards.”

  32. 32.

    See the Annual report of the OHCHR to UNGA, 26 January 2009, A/HRC/10/49. Para. 48 of the report affirms that “States must repeal provisions authorizing institutionalization of persons with disabilities for their care and treatment without their free and informed consent, as well as provisions authorizing the preventive detention of persons with disabilities on grounds such as the likelihood of them posing a danger to themselves or others, in all cases in which such grounds of care, treatment and public security are linked in legislation to an apparent or diagnosed mental illness. This should not be interpreted to say that persons with disabilities cannot be lawfully subject to detention for care and treatment or to preventive detention, but that the legal grounds upon which restriction of liberty is determined must be de-linked from the disability and neutrally defined so as to apply to all persons on an equal basis.”

  33. 33.

    Martens et al. (2006), pp. 658–664.

  34. 34.

    In 2003, the UN Commission on Human Rights already established that “sexual and reproductive health are integral elements of the right of everyone to the enjoyment of the highest attainable standard of physical and mental health” (Commission on Human Rights Resolution 2003/28). This position has been then reaffirmed in 2004 (Commission on Human Rights Resolution 2004/27).

  35. 35.

    See Interventions of the Special Rapporteur on Right to Health. A Note on Article 25 (Health) submitted to the Ad Hoc Committee on a Comprehensive and Integral International Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities by Paul Hunt, United Nations Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, para. 15. http://www.un.org/esa/socdev/enable/rights/ahc7srhealth.htm. Accessed 1 Sept 2015.

  36. 36.

    Proposal for a Council Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation, COM(2008) 426 final.

  37. 37.

    Article 46 of the CRPD states that “Reservations incompatible with the object and purpose of the present Convention shall not be permitted. Reservations may be withdrawn at any time.” A reservation is defined in Article 2 of the Vienna Convention on the Law of Treaties of 1969 as a “unilateral statement, however phrased or named, made by a State, signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State.”

  38. 38.

    Kuwait issued an interpretative declaration with reference to the word ‘care,’ stating that it “shall not imply recognition of illicit relations outside legitimate marriage.”

  39. 39.

    Article 25 (a) establishes that “States must provide persons with disabilities with the same range, quality and standard of free or affordable health care and programmes as provided to other persons, including in the area of sexual and reproductive health and population-based public health programmes” (emphasis added).

  40. 40.

    See Intervention by the Holy See at the 76th Plenary Meeting of the General Assembly of the United Nations on Human Rights and Fundamental Freedoms, New York, 13 December 2006, http://www.vatican.va/roman_curia/secretariat_state/2006/documents/rc_seg-st_20061213_un-rights-persons_en.html. Accessed 1 Sept 2015.

  41. 41.

    Ad Hoc Committee on Comprehensive and Integral International Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities. Daily summary of discussions related to Article 21 ‘right to health and rehabilitation.’ The text is available online at http://www.un.org/esa/socdev/enable/rights/ahc3sum21.htm. Accessed 1 Sept 2015. In this regard, Shaaf (2010).

  42. 42.

    ‘Enable. Declarations and reservations to the Convention on the Rights of Persons with Disabilities.’ Available at http://www.un.org/disabilities/default.asp?id=475. Accessed 1 Sept 2015.

  43. 43.

    Under the Criminal Code, Chapter 9, of the Laws of Malta, abortion is prohibited in all circumstances.

  44. 44.

    The interpretative declaration issued by Lithuania affirms that “… the Republic of Lithuania declares that the concept of “sexual and reproductive health” used in Article 25 (a) of the Convention shall not be interpreted to establish new human rights and create relevant international commitments of the Republic of Lithuania. The legal content of this concept does not include support, encouragement or promotion of pregnancy termination, sterilization and medical procedures of persons with disabilities, able to cause discrimination on the grounds of genetic features.”

  45. 45.

    The reservation states that “The Republic of Poland understands that Articles 23.1 (b) and 25 (a) shall not be interpreted in a way conferring an individual right to abortion or mandating State Party to provide access thereto.”

  46. 46.

    Act of 7 January 1993 on Family-Planning, Human Embryo Protection and Conditions of Legal Pregnancy Termination (Article 4a, paras. 1 and 2). The translation in English of the law is available at http://www.federa.org.pl/reproductive-rights-and-health/abortion-law. Accessed 1 Sept 2015.

  47. 47.

    The interpretative statement of Monaco stated “The Government of His Serene Highness the Prince of Monaco considers that articles 23 and 25 of the Convention must be interpreted as recognizing an individual rights to abortion except where expressly provided for under national law.”

  48. 48.

    ‘Motion on the UN Convention on the Rights of Persons with disabilities,’ available at http://www.governo.it/bioetica/mozioni/mozione_disabilita_onu.pdf. Accessed 25 Sept 2016

  49. 49.

    Italy decided not to make reservations or interpretative declarations with reference to Article 25.

  50. 50.

    Law No. 40 states at Article 1: “the law…guarantees the rights of all stakeholders, including the unborn.”

  51. 51.

    The Vienna Convention establishes that it is unlawful for a State to enter a reservation if that reservation “is prohibited by that treaty” (Article 19(a)) or “is incompatible with the object and purpose of the treaty” (Article 19(c)). The CRPD itself sets out that “[r]eservations incompatible with the object and purpose of the present Convention shall not be permitted” (Article 46, para. 1). It also affirms that “[r]eservations may be withdrawn at any time” (Article 46, para. 2).

  52. 52.

    The Declaration states that “The individual autonomy of the person is an important principle laid down in Article 3 (a) of the Convention. The Kingdom of the Netherlands understands Article 25 (f) in the light of this autonomy. This provision is interpreted to mean that good care involves respecting a person's wishes with regard to medical treatment, food and fluids, and that a decision to withhold any of these can also be based on medical grounds.”

References

  • Acconci MP (2011) Tutela della salute e diritto internazionale. Cedam, Padova

    Google Scholar 

  • Alston P (1994) The best interest of the child: reconciling culture and human rights. Oxford University Press, Oxford

    Google Scholar 

  • Arnardóttir OM, Quinn G (eds) (2009) The UN Convention on the Rights of Persons with Disabilities, European and Scandinavian perspectives. Brill, Leiden

    Google Scholar 

  • Buchanan AE (1984) The right to a decent minimum of health care. Philos Public Aff 14:55–78

    Google Scholar 

  • Doebbler CFJ (2007) The principle of non-discrimination in international law. CD Publishing, Washington

    Google Scholar 

  • Frieden L (2005) The right to health: fundamental concepts and the American disability experience. https://www.ncd.gov/rawmedia_repository/5cef6559_d74_43e3_99fc_de935f36d9b6.pdf. Accessed 25 Sept 2016

  • Groce NE, Trani JF (2009) Millennium development goals and persons with disabilities. Lancet 374(9704):1800–1801

    Article  Google Scholar 

  • Hendriks A (2007) UN Convention on the Rights of Persons with Disabilities. Eur J Health L 14(3):273–298

    Article  Google Scholar 

  • Hughes B, Paterson K (1997) The social model of disability and the disappearing body: towards a sociology of impairment. Disabil Soc 12:325–340

    Article  Google Scholar 

  • Lord JE, Suozzi D, Taylor AL (2010) Lessons from the experience of U.N. Convention on the Rights of Persons with Disabilities: addressing the democratic deficit in global health governance. J Law Med Ethics 38(3):564–579

    Article  Google Scholar 

  • MacLachlan M, Mannan H, McAuliffe E (2011) Access to health care of persons with disabilities as an indicator of equity in health systems. Open Med 5(1):10–12

    Article  Google Scholar 

  • Marchisio S, Cera R, Della Fina V (eds) (2010) La Convenzione delle Nazioni Unite sui diritti delle persone con disabilità. Commentario. Aracne, Roma

    Google Scholar 

  • Martens MA, Jones L, Reiss S (2006) Organ transplantation, organ donation and mental retardation. Pediatr Transplant 10(6):658–664

    Article  Google Scholar 

  • Minkowitz T (2007) The United Nations Convention of the Rights of Persons with Disabilities and the right to be free from nonconsensual psychiatric interventions. Syracuse J Int’l L & Com 34(2):405–428

    Google Scholar 

  • Mitra S, Posarac A, Vick B (2011) Disability and poverty in developing countries: a snapshot from the world health survey. SP Discussion Paper No. 1109. http://siteresources.worldbank.org/SOCIALPROTECTION/Resources/SP-Discussion-papers/Disability-DP/1109.pdf. Accessed 25 Sept 2016

  • Murphy D (2013) Health and human rights. Hart Publishing, Oxford

    Google Scholar 

  • Shaaf M (2010) Negotiating sexuality in the Convention on the Rights of Persons with Disabilities. International Journal of Human Rights No. 14. http://www.surjournal.org/eng/conteudos/getArtigo14.php?artigo=14,artigo_06.htm. Accessed 1 Sept 2015

  • Szmukler G, Daw R, Callard F (2014) Mental health law and the UN Convention on the Rights of Persons with Disabilities. Int J Law Psychiatry 37(3):245–252

    Article  Google Scholar 

  • Tobin J (2012) The right to health in international law. Oxford University Press, Oxford

    Google Scholar 

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  1. National Research Council (CNR), Rome, Italy

    Ilja Richard Pavone

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  1. Institute for International Legal Studies, National Research Council (CNR), Rome, Italy

    Valentina Della Fina

  2. Institute for International Legal Studies, National Research Council (CNR), Rome, Italy

    Rachele Cera

  3. Institute for International Legal Studies, National Research Council (CNR), Rome, Italy

    Giuseppe Palmisano

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Pavone, I.R. (2017). Article 25 [Health]. In: Della Fina, V., Cera, R., Palmisano, G. (eds) The United Nations Convention on the Rights of Persons with Disabilities. Springer, Cham. https://doi.org/10.1007/978-3-319-43790-3_29

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