A/HRC/28/37 19. Submissions received for the present report show that, in general, in every region of the world laws or practices deprive persons with disabilities of their legal capacity. Often third parties are given the right to make decisions on their behalf. Common schemes include guardianship, incapacity to appeal against imposed guardianship, and involuntary medical treatment. Substitute decision-making is a violation of article 19, as it shifts the power from the individual to the guardian in decisions related to living arrangements, such as whether and when to move from institution living to community living. While substitute decision-making may affect a wide range of persons with disabilities, in many cases the denial of legal capacity stems from mental health legislation, which results in persons with psychosocial or intellectual disabilities being more likely to be denied the right to choose their living arrangements. 2. Prohibition of forced institutionalization 20. Article 19, in conjunction with articles12 and 14, prohibits forced institutionalization and deprivation of liberty on the basis of the existence of an impairment. In particular, article 14 does not permit any exceptions on the basis of which persons may be detained on the grounds of their actual or perceived disability, including perceived danger to themselves or others, or lack of fitness to stand trial.16 However, despite those prohibitions, submissions from all regions indicated that forced institutionalization continues to be widely practised. Mental health legislation is usually the basis for institutionalization without consent (decided by a judicial or administrative authority, or by a guardian) and for compulsory medical measures. In many cases, the presumption of danger to oneself and others is a ground for forced institutionalization. 21. While institutionalization can differ from one context to another, certain common elements define it: isolation and segregation from community life; lack of control over dayto-day decisions; rigidity of routine, irrespective of personal preferences or needs; identical activities in the same place for a group of persons under a central authority; a paternalistic approach in the provision of services; supervision of living arrangements without consent; and disproportion in the number of persons with disabilities living in the same environment. Institutionalization is therefore not just about living in a particular setting; it is, above all, about losing control as a result of the imposition of a certain living arrangement. In that sense, small environments, including group homes, are not necessarily better than large institutions if overall control remains with supervisors. 22. Living arrangements should be assessed taking into account issues such as the choice of housemates, who decides when residents can enter or exit, who is allowed to enter a person’s home, who decides the schedule of daily activities, who decides what food is eaten and what is bought and who pays the expenses. Institutions that control those choices, regardless of their size and name, are inconsistent with the Convention on the Rights of Persons with Disabilities and constitute a deprivation of liberty. Lack of thorough understanding of what constitutes institutionalization for persons with disabilities may result in the promotion of newer forms of institutions concealed by superficial changes. For instance, splitting large institutions into smaller ones with the sole purpose of reducing the number of persons living therein only results in the replacement of one type of institution with another. 23. Segregation and institutionalization are often seen as the only available options. However, as the Committee on the Rights of Persons with Disabilities has made clear, institutionalization is incompatible with article 19, and it is an obligation of States parties to 16 Statement of the Committee on the Rights of Persons with Disabilities on article 14, issued at the twelfth session of the Committee (CRPD/C/12/2, p. 14). 7