A/HRC/34/32 V. The human rights-based approach to disability in the context of mental health 22. The Convention on the Rights of Persons with Disabilities adopts a human rightsbased approach to disability and supersedes previous international “soft law” developments, including the Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care. It reflects the most advanced international human rights standards on the rights of persons with psychosocial disabilities. 23. The human rights-based approach to disability, in addition to other principles, requires the unconditional application of the principle of non-discrimination with regard to persons with disabilities. No additional qualifiers associated with an impairment may justify the restriction of human rights. For example, persons with psychosocial disabilities should not be arbitrarily deprived of their liberty on the basis of their impairment including in conjunction with an alleged danger to themselves or to others.33 Mental health policy should adopt and integrate this approach and guard against lowering standards. 24. Widespread practices circumvent the substantive equality approach for persons with psychosocial disabilities in public and private settings, including through the failure to provide reasonable accommodation, that is, the necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms. 34 Disability determination or certification schemes, where they exist, may not recognize them as persons with disabilities, which can lead to their exclusion from disability-specific social protection schemes. A. Equal recognition before the law 25. Article 12 of the Convention on the Rights of Persons with Disabilities affirms the right of persons with psychosocial disabilities to equal recognition before the law, upholding their right to exercise legal capacity on an equal basis with others. In the area of mental health, legal capacity has an important application in the exercise of free and informed consent. Many national laws continue to allow for the denial of legal capacity of persons with psychosocial disabilities, precluding them from making their own decisions. These substituted decision-making regimes commonly permit third parties to provide consent for treatment or admission for treatment on behalf of the person concerned. 26. States should repeal legal frameworks allowing substitute decision makers to provide consent on behalf of persons with disabilities and introduce supported decisionmaking, ensuring its availability for those who request it. Health service providers should seek the free and informed consent of the person concerned by all possible means. 35 27. Compliance with the standards on accessibility of information and communications in the Convention on the Rights of Persons with Disabilities is a key precondition for the exercise of legal capacity and free and informed consent. For example, information on treatments and side-effects is often not available in Braille, sign language, or other alternative modes of communication. While health services may progressively advance in 33 34 35 See CRPD/C/DNK/CO/1, para. 36 and CRPD/C/SWE/CO/1, para. 35. Convention on the Rights of Persons with Disabilities, art. 2. See Committee on the Rights of Persons with Disabilities, general comment No. 1 (2014) on equal recognition before the law, para. 41. 9