Article 12 of the Convention affirms the equal recognition before the law and legal capacity of the persons with disabilities.
States Parties should:
- reaffirm that persons with disabilities have the right to recognition everywhere as a person before the law.
- recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.
- take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.
- ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law.
The CRPD inclusion of Article 12 makes clear that people with disabilities have the right to control decisions about their lives with whatever kinds of support they require and that states parties are obliged to establish the arrangements to make this possible.
The Challenge: The CRPD and the Right to Legal Capacity
“Article 12 recognises the right of persons with disabilities to equal recognition before the law and the attendant right to legal capacity. Persons with disabilities have the right to recognition everywhere as persons before the law. They enjoy legal capacity on an equal basis with others in all aspects of life. Thus, all persons have full legal capacity. They have the right to make and act on their own decisions and to have those decisions legally recognised.”
Disability no justification for denying people’s right to make their own decisions – UN experts
– Accessibility is key for the enjoyment of human rights on an equal basis
GENEVA (22 April 2014) – People with disabilities have the same rights as everyone to make decisions about their lives, including the right to take risks and make mistakes, a UN committee has stressed in new guidelines on implementing the Convention on the Rights of Persons with Disabilities.
“Respect for the freedom to make choices should be accorded to all persons with disabilities, no matter how much support they need,” said Theresia Degener from the Committee on the Rights of Persons with Disabilities (CRPD). “People with disabilities, including those with psychosocial or cognitive impairments, must be supported in making decisions, and not have decisions made for them, even when it is thought to be in their ‘best interests’.”
Article 12 of the Convention enshrines equal recognition before the law, stating that, “States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life”.
In practice, however, many persons with disabilities are denied legal capacity, often on the basis of mental capacity assessments, and are deprived of fundamental rights, including the right to vote, the right to marry and found a family, and the right to liberty.
The CRPD notes that there is a general misunderstanding of States’ obligations under Article 12 and a failure to recognise the importance of “supported decision-making.” Instead, “substituted decision-making”, where others make choices on the person’s behalf, remains common – for example under guardianship regimes or through the use of mental health laws that permit forced treatment.
The CRPD, which monitors the implementation of the Convention, has now issued a detailed reading of Article 12 to clarify States’ obligations. In its General Comment No 1, the Committee underscores the position that States are obliged to provide persons with disabilities with the broad range of support they may need to make decisions that have legal effect.
“Support in the exercise of legal capacity must respect the rights, will and preferences of persons with disabilities,” the General Comment highlights. The CRPD recognises that sometimes it is not practicable to determine exactly what an individual wants, but in these cases decisions should be made on the “best interpretation of their will and preference”, rather than basing choices on what they regard as the “best interests” of the person.
Thematic study on the right of persons with disabilities to live independently and to be included in the community
The right to live independently and to be included in the community emanates from the core human rights principle that all humans are born equal in dignity and rights. Through promoting enabling and inclusive environments for all – including persons with disabilities – it aims to prevent abandonment and segregation and to enable the full development of the personality and capabilities of persons with disabilities. It is founded on the general principles of the Convention on the Rights of Persons with Disabilities (CRPD), including the respect for the inherent dignity, individual autonomy and independence of persons with disabilities, and their full and effective participation and inclusion in the society.
Legal opinion on Article 12 of the UN Convention on the Rights of Person with Disabilities – signed by more than 30 distinguished international legal experts.