A/HRC/37/56 32. Similarly, the provision of support to persons experiencing an emotional crisis and severe distress poses certain difficulties. The default response in most jurisdictions today is to override the legal capacity of the person concerned and to authorize forced psychiatric interventions. However, such an approach does not respect the inherent dignity and autonomy of the individual. The support paradigm offers a rights-based approach to deal with such cases. For instance, advance plans allow persons with disabilities to give instructions on how to deal with future emotional crises and/or to appoint a person to support them in those particular circumstances. In addition, there is growing evidence as to the effectiveness of non-coercive support practices within and outside the health sector (see A/HRC/35/21, para. 29). Those practices need to be further researched, developed and implemented, and must be based on the principles set out above regarding supported decision-making. In addition, there is an urgent need to address the structural aspects that make it impossible for persons with disabilities to access support during an emotional crisis (for example, because of prejudice, low expectations, lack of flexibility, lack of resources or stringent liability). 33. Article 12 of the Convention was one of the most discussed articles and the one that demanded the greatest consensus during the negotiations. The issues of universal legal capacity and substituted decision-making were discussed extensively during the drafting process. The text adopted reflects the common understanding that all persons with disabilities should enjoy the right to legal capacity on an equal basis with others, as well as the right to access support if requested. In fact, proposals to limit the scope of the right to legal capacity and to incorporate a substituted decision-making paradigm, including the proposal to include a footnote conditioning the understanding of the term legal capacity in several languages, were rejected prior to the adoption of the Convention. IV. Legal capacity law reform 34. Under international human rights law, States have an obligation to respect, protect and fulfil the right of all persons with disabilities to legal capacity. The obligation to respect means that States should refrain from interfering with or curtailing, by any means, the enjoyment of persons with disabilities of the right to legal capacity. The obligation to protect requires States to prevent third parties, including private actors, from interfering with persons with disabilities to realize and enjoy the right to legal capacity. The obligation to fulfil requires States to take positive actions to facilitate the exercise of their legal capacity, including by facilitating access to support and training. 35. International human rights law also imposes on States an obligation to ensure that their domestic legislation is consistent with international standards. Article 4 (1) (a) and (b) of the Convention requires States to adopt all the appropriate legislative measures to implement the human rights and fundamental freedoms recognized therein and to repeal any inconsistent legislation that constitutes discrimination against persons with disabilities. States must therefore review the adequacy of their existing legislation in view of their obligations under article 12 and other related articles of the Convention. 36. Accordingly, States should identify all legislation to be abolished, amended or adopted to render their normative framework compliant with article 12 of the Convention. The legal review should be comprehensive and take into account the interdependence and indivisibility of all human rights. It should also be all-encompassing and exhaustive, going beyond the traditional areas of law related to legal capacity (civil, family and mental health law), to include legislation on political participation, privacy, health, employment, social protection, immigration, criminal law and access to justice, among other things. 37. Thirteen States parties to the Convention have issued reservations and declarations 14 upon ratification or accession, with the intention of limiting the implementation of article 14 The Special Rapporteur considers such declarations as reservations, since they aim to exclude or modify the legal effect of the provisions of the Convention. 9

Select target paragraph3

Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents