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Expert Group Meeting and Seminar on
an International Convention to Protect and Promote the Rights and Dignity of Persons with
Disabilities |
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Expert Group Meeting and Seminar on
an International Convention to Protect and Promote the Rights and Dignity of Persons with
Disabilities |
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Online :Who should be covered by the ConventionDiscussion Paper for the On-line SeminarThe issue of determining who should be covered by a Convention on the Rights of Persons with Disabilities is critical. Unlike all other human rights conventions, who is covered is not simple. This is because disability is a condition rather than an attribute of an individual. Other conventions cover persons with specific attributes. The two human rights Covenants and the Convention on Torture refer to all human beings, the Convention on Racial Discrimination refers to persons in certain racial or ethnic groups, the Convention on the Rights of the Child refers to persons under the age of 18 years, the Convention on the Elimination of All Forms of Discrimination against Women refers to women, and the Convention on Migrant Workers and their Families refer to persons with a legal status of migrant worker. Disability is a condition. One need not be born with it, its severity can change over time, and it may be compensated for by medical treatment or equipment. The variety of conditions that could be considered disabilities is very large. Most countries use different definitions of disability for different types of programmes. Unless the boundaries of what are considered disabilities are set, the Convention itself will be difficult to apply. EXISTING DEFINITIONSWho is considered a person with a disability is not so clear. The definitions in use in existing intergovernmental documents, like the Standard Rules for the Equalization of Opportunities for Persons with Disabilities or the Interamerican Convention on the Rights of Persons with Disabilities are somewhat vague. The Standard Rules for the Equalization of Opportunities for Persons with Disabilities have a definition that is very imprecise. They state:
The Standard Rules definition was based on the International Classification of Impairment, Disability and Handicap (ICIDH), a WHO classification system that was in force at the time. The ICIDH has been substantially revised and replaced, as of 2001, by the new International Classification of Functioning, Disability and Health (ICF). The Inter-American Convention uses a definition that is largely drawn from a major national legislation, the Americans with Disability Act:
While the Act itself does not specify what substantial limitation or major life activities mean, the United States Census applied a definition for the purpose of collecting data. It used three different categories of life activities:
Most of the activities, as defined by the US Census, refer to activities related to persons with physical disabilities. The only exceptions are "keeping t rack of money or bills" and "using the telephone." VISIBLE AND INVISIBLE DISABILITIESThe issue really turns on the difference between visible and invisible disabilities. From the medical perspective, as reflected in the ICF, disability is the result of an impairment that leads to an activity limitation or participation restriction. The key starting term here is the idea of impairment. The ICF is rather specific about this:
In the ICF an impairment has to be observed (its definition is "undertaken primarily by those qualified to judge"). It is also related to a somewhat elusive concept of "generally accepted population standards." In practice physical impairments that can easily be observed do not present a problem. A person who is unable to walk because of a physical impairment, a person who is blind or a person who is deaf clearly will have the condition leading to disability. In fact, most of the laws and regulations about disability refer to disabilities of physical origin. The difficulty comes with what are often called, "invisible" impairments. These include mental impairments and physical impairments (like lupus) whose consequences cannot easily be observed. The issue is at what point there is an observable impairment and whether that impairment leads to a disability. IMPAIRMENT AND DISABILITYIn common usage, an impairment becomes a disability when it leads to a limitation or restriction in activities and participation. In the ICF,
Impairments have to be seen in terms of their consequences for activity and participation. In the ICF, activity is the execution of a task or action by an individual and participation is involvement in a life situation. The ICF specifies nine domains for activity and participation
This is a larger set than in the US Census, and in the ICF each domain has its definition. The domains include activities where a mental impairment could limit or restrict. The key to this approach is to assess the extent of limitation or restriction. This can vary by country and circumstance. If all buildings were accessible to wheelchairs, that limitation would be reduced, just as the availability of eyeglasses can reduce or eliminate the limitation caused by eyesight that is not 20-20. SEVERITY OF LIMITATIONClearly the severity of limitation or restriction in activities or participation is a crucial factor in determining who has a disability. Again, this is easier with visible impairments than with invisible. Does mental retardation, for example, provide a sufficient limitation to consider a person to have a disability? Or in the case of mental conditions, like severe depression, which can be addressed at least in part by anti-depressants, at what point does the depression cross the line and the person become disabled? The issue is more complex when dealing with what could be called "self-induced impairments". These include addictions, to alcohol or drugs, for example. Should these be considered in defining disability for the purposes of the Convention? There are dilemmas here from the policy perspective that is inherent in a Convention. For example, in the United States until a few years ago, a person could obtain disability status for being an alcoholic. That, however, was found to have reduced the incentive to, alcoholics to recover, since they would lose their income if they recovered. As a result, the government actually changed that, and a person can no longer obtain disability from Social Security for being an addict. However, if a person's mental capacity has been severely impaired because of drug use, that person can obtain a disability. Disability status is also available persons who have been injured while driving under the influence of alcohol or having been injured in a drug deal that has resulted in violence. These persons are genuinely disabled but would not have been disabled except for alcohol or drug use. On the other hand, if a person is considered disabled, that person can obtain treatment, a prosthesis, a wheel chair or rehabilitation. If addiction were recognized as a disease, as the American Medical Association did in the early 1950's, then a person could obtain treatment for it. However, many would want to encourage addicts to change their destructive behaviors/lifestyle, not to go on the dole, which would definitely prolong the problem. And many addicts, if they were to become clean and sober, lack life skills, educational and vocational skills, all of which would be covered if they had lost a leg, but not if you are recovering from addiction. TEMPORARY OR PERMANENT?Another issue is whether the impairment that leads to a limitation or restriction in activity or participation is temporary or permanent. For some impairment, such as those relating to mobility, whether the impairment was temporary would not be important: the same kinds of accommodations would be needed as for someone with a permanent impairment. The issue is again more complex with regard to invisible impairments. If an impairment can be "cured" (as with recovery from an addiction or as a result of psychotherapy), should that be considered a disability? Or is it a disability until it is cured? The problem becomes more complex when there is potential discrimination against persons who were diagnosed as having an impairment leading to a disability that was subsequently alleviated, as in the case of successful therapy. Should the former existence of a disability be considered in the definition? WHO DECIDES?In practice, for purposes of a legal determination of who has a disability, there has to be some authority for deciding. In most countries, this is a responsibility delegated to the medical profession, although it may be subject to appeal. In some countries, there are boards to make a determination. In almost no countries can disability be self-designated. The issue becomes particularly difficult when the impairment being reviewed is an invisible one. Here, the capacity for abuse is considered by many to be very high, since a person diagnosed with a mental illness can be forcibly institutionalized in some countries, medications can be provided without the person's consent and civil rights can be abrogated. A similar situation can exist with regard to retardation, where an adult can be determined to need a guardian without consent. The issue of whether an individual has a right to what some have called "self-determination" is related at least in part to what is defined as a disability and who is permitted to make the decision. HOW CAN THESE ISSUES BE ADDRESSED IN THE CONVENTION?A central issue for the regional seminars is how these issues can be addressed in the Convention. Some elements can be set out based on the analysis.
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