A/HRC/34/58
systems to be able to cooperate more effectively with States, including through technical
guidance, information and capacity-building.
7.
Accountability and monitoring
73.
States must monitor effectively the access of persons with disabilities to appropriate
support. For that purpose, States should build, within their national legal and policy
frameworks, clear accountability mechanisms, with indicators and benchmarks for
measuring the accountability of State authorities. The governmental focal points and
coordination mechanisms for the implementation of the Convention on the Rights of
Persons with Disabilities, as required by its article 33 (1), should be considered as the
mechanisms for overseeing implementation. To prevent the occurrence of all forms of
exploitation, violence and abuse in the provision of support, States must ensure independent
monitoring of all the facilities and programmes that provide services to persons with
disabilities as well as the establishment of appropriate and effective safeguards.
74.
Persons with disabilities should have access to effective judicial or other appropriate
remedies when States fail to meet their obligation to ensure access. Similarly, States must
guarantee that all persons with disabilities who have experienced any form of exploitation,
violence or abuse in the context of support received have access to justice and effective
remedies. These remedies should include adequate reparations, including restitution,
compensation, satisfaction and guarantees of non-repetition, as appropriate. National
human rights institutions and independent mechanisms to promote, protect and monitor the
implementation of the Convention should be mandated to carry out inquiries and
investigations (art. 33 (2)) as well as provide assistance to persons with disabilities in
accessing legal remedies.
B.
Obligations related to specific types of support
75.
There is a diversity of forms of support services and arrangements for persons with
disabilities. These include, but are not limited to, the different types of support measures
described in the following paragraphs. While the classification is useful for identifying
specific obligations and particularities, in practice most forms of support overlap in
significant ways.
1.
Decision-making
76.
Some persons with disabilities may want support to make decisions, hence to
exercise their legal capacity. The Convention on the Rights of Persons with Disabilities
explicitly recognizes that States have an obligation to provide persons with disabilities with
access to support in the exercise of their legal capacity (art. 12 (3)). States must replace
regimes of substitute decision-making with regimes of supported decision-making that
respect the rights, will and preferences of persons with disabilities, such as support
agreements, peer support groups, self-advocacy support and advance directives, among
others. In its general comment No. 1 (2014) on equal recognition before the law, the
Committee on the Rights of Persons with Disabilities provides guidance on how to ensure
access to support in decision-making.
77.
Since the adoption of the Convention, it is encouraging to note that many countries,
including Argentina, Costa Rica, Czechia and Ireland, have revised their legal frameworks
to recognize the right of persons with disabilities to access support to exercise legal
capacity. In order to uphold a real paradigm shift, the implementation of supported
decision-making systems must be accompanied by the abolishment of all substitute
decision-making regimes.
18
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