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