Materials : AHC
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Rehabilitation
International’s position paper on the Right to [Re]habilitation
1 Definitions
For the purpose of this paper, the following definitions are used:
Habilitation
To enable, or make able
Rehabilitation To restore condition, operation or capacity
The defining of terms in this paper is not meant to have legal
implications.
In some countries the term habilitation is used to describe the wide
range of ways used to assist in enabling persons who are born with
disabilities. Their needs are often different from the needs of people who
acquire disabilities through e.g. an accident or a disease. In this paper,
the term (re)habilitation is referring to rehabilitation as well as
habilitation.
2
Summary
Rehabilitation and habilitation go far beyond the health field and
embraces a wide range of issues including education, social counseling,
vocational training, transportation, accessibility and assistive technology.
The intended goal of [re]habilitation would best be amplified under a
separate article within the new UN Convention.
The UN Convention should be a “visibility” project that will both
highlight the rights and place of people with disabilities within society
and “mainstream” disability into the human rights regime.
The Ad Hoc Committee is urged to give the crafting of a separate article
on the Right to [Re]habilitation its highest consideration.
3 Commentary
For most people with disabilities, access to adequate (re)habilitation is
a condition for integration into society and participation in the
communities in which they live. Without rehabilitation many people with
disabilities would be isolated from society, their community and even their
family. While (re)habilitation is often thought to include only
medical aspects, the reality is that it goes far beyond the health field and
embraces a wide range of issues.
It is crucial that the concept of (re)habilitation be separate from that
of health care and that a distinct article is devoted to (re)habilitation in
the convention. Developing a separate article does not necessarily
entail the creation of new rights; it would simply delineate a concept that
is already included in existing instruments. Dedicating an article to the
issue would advance international understanding of disability and
(re)habilitation through a rights-based perspective, and would provide a
clear reference point for policy-making.
This paper aims to engage in a positive discussion with all the
stakeholders participating in the negotiations, bearing in mind that we all
work for the same aim: the benefit of people with disabilities. For this
reason, in this essay, alternatives are put forward, e.g. the approach of
including (re)habilitation in each and every article. However, as
explained, this exercise proves to be quite arduous and certainly not exempt
from omissions. It is our conclusion is that a stand-alone article on
(re)habilitation is necessary.
Legal background
Paragraph 23 in the Definitions section of the UN Standard Rules defines
[re]habilitation as:
a process aimed at enabling persons with disabilities to reach and
maintain their optimal physical, sensory, intellectual, psychiatric and/or social
functional levels, thus providing them with the tools to change their lives towards a higher
level of independence… The rehabilitation process does not involve initial
medical care. It includes a wide range of measures and activities from more basic and
general rehabilitation to goal-oriented activities, for instance vocational
rehabilitation.[1]
The term [re]habilitation is broad in scope and employs a
cross-disciplinary approach to empowering people with disabilities.
Rule 3 of the Standard Rules elaborates that the purpose of [re]habilitation
never changes faces no matter what particular service mechanisms—vocational,
educational, medical, etc.—enhance and facilitate the self-development and
autonomy of persons with disabilities, calling on States to “ensure the
provision of rehabilitation services to persons with disabilities in order
for them to reach and sustain their optimum level of independence and
functioning.”[2]
With this goal in mind, it is necessary to consider the best place for
[re]habilitation within the new UN treaty elaborating the rights of persons
with disabilities. Thus far, members of the Working Group have
considered several approaches: placing the right to [re]habilitation
within the right to health (as is composed in Draft Article 21), placing
[re]habilitation within various rights (i.e. the right to work or the
right to education) as it applies to those rights, or placing it as a
stand-alone article.[3]
This paper examines in brief these approaches and suggests that the intended
goal of [re]habilitation would best be amplified under a separate article.
Must [Re]habilitation fall under the Right to Health?
The misconception is that a discussion of [re]habilitation belongs
under the right to health. While it is true that even the World Health
Organization has adopted an expansive definition of health,[4]
in international (and certainly domestic)[5]
legal practice, [re]habilitation has not been isolated into a primarily
health-related issue. In policy terms, perhaps the best way to
envision the purpose and starting point of [re]habilitation in the life of a
person with a disability is the place where the medical profession ends and
the process of acclimating to one’s disability and maximizing one’s capacity
in a full range of life activities begins.
International legal sensibilities of the right to [re]habilitation did
begin with a health-based conception, but as the understanding of disability
itself has evolved from a medical to a rights-based perspective, so has the
understanding of the purpose and place of [re]habilitation. To be
sure, in General Comment No. 5 on the ICESCR, the disabled individual’s
right to have access to [re]habilitation services is affirmed under
paragraph 34 linked with a discussion on the right to health, but the
language of the affirmation of this distinctive right to [re]habilitation
emphasizes the departure from the old conception of [re]habilitation that
was marked in Rule 3 of the Standard Rules.[6]
Rule 3 has not only separated [re]habilitation as a stand-alone right but
has refocused its goal. According to both its definition in paragraph
23 of the Standard Rules and the language of Rule 3, [re]habilitation should
not be understood as a medical service that is guided by the parameters of
the doctor-patient relationship but as a unique tool going far beyond the
health field and consisting of a wide range of services that empower the
individual, placing the individual in control of both his/her own
[re]habilitation plan but also a shaper of national and international
[re]habilitation policy.
Specific international instruments have moved us several steps forward in
advancing this more progressive comprehension of [re]habilitation—taking it,
and thus disability itself, out of the medical context and giving the issue
a rights-driven focus. For instance, the construction of Article 23.3
of the Convention on the Rights of the Child—the first binding instrument in
the UN human rights regime specifically mentioning disability—distinguishes
between health care services and [re]habilitation services.
The language does not state that disabled children shall have
access to “health and [re]habilitation services” but rather
elaborates that the child shall have access “to education, training, health
care services, rehabilitation services, [etc.]…”[7]
The language in this article’s subparagraph seeks to highlight
[re]habilitation services as a separate system and type of empowering
mechanism in the lives of children with disabilities that should be set
apart from medical “treatment” or other such connotations. But, the
language also sets apart [re]habilitation from other linked issues such as
education and vocational training. By focusing exclusively on
[re]habilitation, Rule 3 of the Standard Rules thus brings to fruition a
slow but progressive shift in the specific elaboration of rights guaranteed
to people with disabilities and in the positive perception of disability
issues that was evolving in the international community over the last few
decades.
Other international and regional instruments have contributed to this
de-medicalization of the right to [re]habilitation as elaborated so well in
Standard Rule 3. ILO Convention No. 159 puts the right to
[re]habilitation in a purely vocational context, emphasizing those elements
of [re]habilitation policy that pertain to the right to work, creating space
for positive action measures, and stressing the need for people with
disabilities to steer their own [re]habilitation plans and for their
representative organizations to have a strong hand in setting domestic
[re]habilitation policy agendas.[8]
Key regional instruments have also given a broader scope to the right to
[re]habilitation. Perhaps the oldest regional instrument with specific
reference to both disability and recognition of the right to
[re]habilitation (specified in Articles 1 and 15) as separate and distinct
from both the right to health (Article 11) and the right to vocational
training and guidance (elaborated in Articles 9 and 10), and other related
services is the European Social Charter whose Preamble proclaims that:
“[d]isabled persons have the right to vocational training, rehabilitation
and resettlement, whatever the origin and nature of their disability.”[9]
The Charter’s language creates space for the progressive, cross-disciplinary
approach to both disability and [re]habilitation that have shifted these
issues from a purely medicalized treatment-based conception (often codified
under the right to health) to a rights-driven understanding adopted in
subsequent regional and international instruments—from the Council of
Europe’s own subsequent recommendations on disability policies[10]
to the adoption of the Standard Rules and movement toward this convention.
Thus, given these international and regional developments, linking
[re]habilitation exclusively to health now would be a step backward in
advancing international understanding of disability through a rights-based
perspective—the admitted purpose of this very convention.
Why A Separate Article? Couldn’t [Re]habilitation fall under
another Right?
Indeed, [re]habilitation is a broad enough issue to fall under several
articles. Its vocational emphasis suggests a natural marriage to the
Right to Work article under perhaps a special “training”-related clause.
Its definitional components—i.e. specific mention of basic skills training,
assessments, guidance, and special courses—laid out in Rule 3 of the
Standard Rules suggest a linkage to the Right to Education.
[Re]habilitation’s deeper purpose in the lives of people with
disabilities—to provide the tools to enhance living independently—perhaps
calls for its articulation also in Draft Article 15 on Living
Independently and Being Included in the Community. After all, the very
objective of Draft Article 15—the notion that States must “take effective
and appropriate measures to enable persons with disabilities to live
independently and be fully included in the community”—cannot be achieved
without State Parties ensuring the provision of vital [re]habilitation
services that will facilitate the self-empowerment and inclusion of
individuals with disabilities within society.
However, perhaps the two strongest reasons to separate out [re]habilitation
into an individual and distinct article in this historic treaty stem from
the fact that [re]habilitation encompasses so many policy issues.
Setting apart [re]habilitation as its own article both highlights its
importance as a human right and provides greater clarity to what is
an extremely cross-disciplinary issue. If [re]habilitation is not
mentioned separately, then drafters will either have the burden of ensuring
that it is mentioned in every article that might have relevance to it or
face the consequence of [re]habilitation being understood as an exhaustive
issue only pertaining to a limited scope of policy fields—i.e. health or
work or education—depending on where in a particular article its mention
might be forgotten.
In the
comprehensive study on disability within the United Nations human rights
regime, Human Rights and Disability,Gerard Quinn and Theresia Degener
note the necessity of this Convention as a “visibility” project that will
both highlight to the rights and place of people with disabilities within
society and will finally “mainstream” disability into the human rights
regime.[11]
An essential part of this “visibility” project is to recognize certain
rights and policy processes that enhance the autonomy and self-development
of people with disabilities; for people with disabilities, [re]habilitation
is at the core of exercising the individual’s autonomy and maximizing
participation in society and, therefore, must be a necessary component of
the “visibility” project itself.
By crafting the right to [re]habilitation as a new and separate article,
we will best be able to make visible its critical role in the lives of
people with disabilities that States must acknowledge and ensure. We
will also maximize its cross-disciplinary applications in the exercise of
other important rights—i.e. the Right to Work, etc.—that will be recognized
in the Convention.
Hence, while it is acknowledged:
1) that at times [re]habilitation has been
linked to the Right to Health, and;
2) that there are several (if not many)
places where the right to [re]habilitation can be codified in this
Convention;
we still find that the most appropriate place for the elaboration of this
right would be in a stand-alone article. We conclude this both on the
basis of the necessity to reform our own understanding of disability,
keeping pace with new social and non-medical ideologies about disability
within the human rights discourse, and on the basis of the benefits in terms
of visibility and clarity a stand-alone article would provide. The Ad
Hoc Committee is thus urged to give the crafting of a separate article on
the Right to [Re]habilitation its highest consideration.
Mariyam A. Cementwala, who is working with Professor Gerard Quinn, was
the primary contributor to this paper.
1. Standard
Rules on the Equalization of Opportunities for Persons with Disabilities.
G.A. 85th Plenary Meeting, December 20, 1993, U.N.
GAOR, U.N. Doc. A/RES/48/96, available at
http://www1.umn.edu/humanrts/instree/disabilitystandards.html
2. Id.
3. Reference to
any “Draft Article” and Working Group approaches in drafting, unless
otherwise indicated, come from both the proposed articles and their
respective footnotes in the Draft Comprehensive and Integral
International Convention on the Protection and Promotion of the Rights and
Dignity of Persons withDisabilities, adopted by members of the Working
Group of the Ad Hoc Committee on a Comprehensive and Integral International
Convention on the Protection and Promotion of the Rights of Persons with
Disabilities in New York on January 16, 2004.
4. Quoting from
the University of Minnesota Human Rights Library’s website on the WHO and
the right to adequate health: “The WHO defines health as ‘a state of
complete physical, mental and social well-being and not merely the absence
of disease or infirmity’ (http://www.who.int/en/).”
“The Right to Adequate Health” in Human Rights Library.
University of Minnesota, n.d. available at:
http://www1.umn.edu/humanrts/edumat/ studyguides/righttohealth.html#biblio2
5. For
instance, in the U.S., federal [re]habilitation policy (overseen by the
Rehabilitation Services Administration)
is placed under the jurisdiction of the Department of Education, helping
to underscore that [re]habilitation is a broad policy issue linked to
self-development and lifelong learning, not a medical matter merely confined
to health-related policies and programs.
6. Paragraph
34 of General Comment No. 5 (ICESCR) states that:
According to the Standard Rules, "States should ensure that persons with
disabilities, particularly infants and children, are provided with the same
level of medical care within the same system as other members of society".
The right to physical and mental health also implies the right to have
access to, and to benefit from, those medical and social services -
including orthopedic devices - which enable persons with disabilities to
become independent, prevent further disabilities and support their social
integration.Similarly, such persons should be provided with
rehabilitation services which would enable them "to reach and sustain their
optimum level of independence and functioning". All such services should
be provided in such a way that the persons concerned are able to maintain
full respect for their rights and dignity. Ref. General Comment No.
5 (1994): Persons with Disabilities, U.N. ESCOR,
11th Sess., Supp. No. 2, at 102, U.N. Doc.
E/1995/22 (1995), available at
http://www.unhchr.ch/tbs/doc.nsf/385c2add1632f4a8c12565a9
004dc311/4b0c449a9ab4ff72c12563ed0054f17d?OpenDocument
7. Article
23.3 of the CRC states:
Recognizing the special needs of a disabled child, assistance extended in
accordance with paragraph 2 of the present article shall be provided free of
charge, whenever possible, taking into account the financial resources of
the parents or others caring for the child, and shall be designed to ensure
that the disabled child has effective access to and receives education,
training, health care services, rehabilitation services, preparation for
employment and recreation opportunities in a manner conducive to the
child's achieving the fullest possible social integration and individual
development, including his or her cultural and spiritual development
Ref. Convention on the Rights of the Child, G.A.
Res. 44/25, U.N. GAOR Supp. No. 49, at 167, U.N. Doc.
A/44/49 (1989), entered into force on September 2, 1990, available
at http://www.unhchr.ch/html/menu3/b/k2crc.htm .
8.
Convention Concerning Vocational Rehabilitation and Employment of Disabled
Persons (ILO No. 159), June 20, 1983, UNTS 1401, at
235, entered into force on June 20, 1935, available at
http://www.austlii.edu.au/au/other/dfat/treaties/1991/18.html
9.
European Social Charter, October 18, 1961, UNTS 89, at
529, entered into force on February 26, 1965, available at
http://www.hrea.org/erc/Library/hrdocs/coe/social-charter.html
10. The Council of
Europe’s two most recent recommendations on disability are Recommendation
1185 on Rehabilitation Policies for Disabled (1992) [available at
http://www.hrea.org/learn/guides/disabilities.html]
and Recommendation (92)6 on a Coherent Policy for People with
Disabilities (1992) [available at
http://cm.coe.int/ta/rec/1992/92r6.htm].
11. Gerard Quinn and
Theresia Degener et al. “Chapter 13 – Expanding the
System: The Debate About a Disability-Specific Convention” inHuman
Rights and Disability: The Current Use and Future Potential of United
Nations Human Rights Instruments in the Context of Disability.
United Nations, 2002.
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