The UN Convention on the Rights of Persons with Disabilities (CRPD) was passed in 2006 and came into force in 2008. It sets out a number of core values, including dignity, individual autonomy, non-discrimination, participation and community inclusion. Although the CRPD has been recognised as an important step forward by many disabled people and their supporters and provides the foundation for building a good life, the author argues that it does not necessarily equate with (...) it. The underpinning Western values of choice, independence and control are important, but leave out groups of marginalised people for whom these goals may not be achievable. They also present challenges and dilemmas for those involved in supporting/caring roles. In this paper, the author reflects on the implications of the CRPD for the lives of people with learning disabilities, in particular those with profound needs and explores whether it provides a genuinely coherent framework for an inclusive society. (shrink)

The Convention on the Rights of Persons with Disabilities is increasingly seen as driving a paradigm shift in mental health law, particularly in relation to the understanding that it requires a shift from substituted to supported decisions. This article identifies two competing moral commitments implied by this shift, both of which appeal to the notion of autonomy. It is argued that because of these commitments the Convention is in tension with more general calls (...) in the medical ethics literature for preserving patient autonomy through support. The competing commitments within the Convention also present a particular challenge in putting the support it requires into practice. A discursive control account of freedom is used to develop some practical guidelines for navigating this new moral territory. (shrink)

It is widely accepted among medical ethicists that competence is a necessary condition for informed consent. In this view, if a patient is incompetent to make a particular treatment decision, the decision must be based on an advance directive or made by a substitute decision-maker on behalf of the patient. We call this the competence model. According to a recent report of the United Nations (UN) High Commissioner for Human Rights, article 12 of the UN Convention on the (...) Rights of Persons with Disabilities (CRPD) presents a wholesale rejection of the competence model. The High Commissioner here adopts the interpretation of article 12 proposed by the Committee on the Rights of Persons with Disabilities. On this interpretation, CRPD article 12 renders it impermissible to deny persons with mental disabilities the right to make treatment decisions on the basis of impaired decision-making capacity and demands the replacement of all regimes of substitute decision-making by supported decision-making. In this paper, we explicate six adverse consequences of CRPD article 12 for persons with mental disabilities and propose an alternative way forward. The proposed model combines the strengths of the competence model and supported decision-making. (shrink)

Making decisions is an important component of everyday living, and issues surrounding autonomy and self-determination are crucial for persons with intellectual disabilities. Article 12 (Equal Recognition before the Law) of the UN Convention on the Rights of Persons with Disabilities addresses this issue of decision-making for persons with disabilities: the recognition of legal capacity. Legal capacity means recognizing the right to make decisions for oneself. Article 12 is also moving (...) in the direction of supported decision-making, as an alternative to substituted decision-making. The objective of this paper is to show conceptually the connection between supported decisionmaking and the preservation of personal autonomy for persons with intellectual disabilities. This paper discusses supported decision-making based on Bach and Kerzner's model: (a) legally independent status, (b) supported decision- making status, and (c) facilitated decision-making status. Arguments will be made based on John Stuart Mill's concept of autonomy and arguments against it using Sarah Conly's argument for paternalism. (shrink)

Making decisions is an important component of everyday living, and issues surrounding autonomy and self-determination are crucial for persons with intellectual disabilities. Adults with intellectual disabilities are characterized by the limitations in their intellectual functioning and in their adaptive behavior, which compromises three skill types, and this starts before the age of 18. Though persons with intellectual disabilities are characterized by having these limitations, they are thought to face significant decisionmaking challenges due (...) to their disability. Moving away from this generalization, Article 12 of the United Nations Convention on the Rights of Persons with Disabilities addresses this issue of decision-making for persons with disabilities, recognizing the right to legal capacity. (shrink)

The United Nations Convention on the Rights of Persons with Disabilities, adopted on December 13, 2006, and entered into force on May 3, 2008, constitutes a key landmark in the emerging field of global health law and a critical milestone in the development of international law on the rights of persons with disabilities. At the time of its adoption, the U.N. High Commissioner for Human Rights heralded the CRPD as a (...) rejection of the understanding of persons with disabilities “as objects of charity, medical treatment and social protection” and an embrace of disabled people as “subjects of rights.”The text of the Convention itself, and the highly participatory process by which it was negotiated, signal a definitive break from previous international approaches that focused on disability within a medical model framework. In contrast to traditional approaches, the CRPD embraces a social model of disability, concentrating the disability experience not in individual deficiency, but in the socially constructed environment and the barriers that impede the participation of persons with disabilities in society. (shrink)

The 2008 UN Convention on the Rights of Persons with Disabilities (CRPD) provides a landmark articulation of the universality of human rights. It affirms in strong terms that all human beings have a claim to full inclusion and equal participation in society, something denied to many because of disability. The CRPD is an ambitious document with far-reaching and fundamental implications. This interdisciplinary collection of essays takes up pressing philosophical, legal, and practical issues raised (...) by the CRPD and the ongoing process of its implementation. Combining clear legal and philosophical overviews with ground-breaking conceptual analyses, the collection aims to advance the academic debate about human rights and disability and to serve as a useful resource for policymakers, ethicists, disability activists, jurists, and all those interested in the human rights of persons with disabilities. With contributions by Jackie Leach Scully, Marcus Düwell, Jenny Goldschmidt, Sigrid Graumann, Caroline Harnacke, Jan Vorstenbosch, Esther van Weele, Joel Anderson, Jos Philips. (shrink)

In 2014 the Essex Autonomy Project undertook a six month project, funded by the AHRC, to provide technical advice to the UK Ministry of Justice on the question of whether the Mental Capacity Act is compliant with the United Nations Convention on the Rights of Persons with Disabilities. Over the course of the project, the EAP research team organised a series of public policy roundtables, hosted by the Ministry of Justice, and which brought together (...) leading experts to discuss and debate the issues. A one-day public conference was held at the Institute for Government in July. In September 2014, the EAP research team submitted its findings to the Ministry of Justice. (shrink)

In 2014 the Essex Autonomy Project undertook a six month project, funded by the AHRC, to provide technical advice to the UK Ministry of Justice on the question of whether the Mental Capacity Act is compliant with the United Nations Convention on the Rights of Persons with Disabilities. Over the course of the project, the EAP research team organised a series of public policy roundtables, hosted by the Ministry of Justice, and which brought together (...) leading experts to discuss and debate the issues. A one-day public conference was held at the Institute for Government in July. In September 2014, the EAP research team submitted its findings to the Ministry of Justice. (shrink)

In 2014 the Essex Autonomy Project undertook a six month project, funded by the AHRC, to provide technical advice to the UK Ministry of Justice on the question of whether the Mental Capacity Act is compliant with the United Nations Convention on the Rights of Persons with Disabilities. Over the course of the project, the EAP research team organised a series of public policy roundtables, hosted by the Ministry of Justice, and which brought together (...) leading experts to discuss and debate the issues. A one-day public conference was held at the Institute for Government in July. In September 2014, the EAP research team submitted its findings to the Ministry of Justice. (shrink)

This article reviews the contributions of the UN Convention on the Rights of Persons with Disabilities to the progressive development of both international human rights law and global health law and governance. It provides a summary of the global situation of persons with disabilities and outlines the progressive development of international disability standards, noting the salience of the shift from a medical model of disability to a rights-based social model reflected (...) in the CRPD. Thereafter, the article considers the Convention's structure and substantive content, and then analyzes in specific detail the particular contributions of the Convention to health and human rights law and global health governance. It concludes with an exploration of the potential implications of the CRPD's innovations for some of the most pressing issues in global health governance, including the Convention's contributions to the principle of participation in decision-making. (shrink)

Compulsory psychiatric treatment is the norm in many Western countries, despite the increasingly individualistic and autonomous approach to medical interventions. Community Treatment Orders are the singular best example of this, requiring community patients to accept a variety of interventions, both pharmacological and social, despite their explicit wish not to do so. The epidemiological, medical/treatment and legal intricacies of CTOs have been examined in detail, however the ethical considerations are less commonly considered. Principlism, the normative ethical code based on the principles (...) of autonomy, beneficence, non-maleficence and justice, underpins modern medical ethics. Conflict exists between patient centred commentary that reflects individual autonomy in decision making and the need for supported decision making, as described in the Convention on the Rights of Persons with Disabilities and the increasing use of such coercive measures, which undermines this principle. What appears to have been lost is the analysis of whether CTOs, or any coercive measure in psychiatric practice measures up against these ethical principles. We consider whether CTOs, as an exemplar of coercive psychiatric practice, measures up against the tenets of principalism in the modern context in order to further this debate. (shrink)

In 2014 the Essex Autonomy Project undertook a six month project, funded by the AHRC, to provide technical advice to the UK Ministry of Justice on the question of whether the Mental Capacity Act is compliant with the United Nations Convention on the Rights of Persons with Disabilities. Over the course of the project, the EAP research team organised a series of public policy roundtables, hosted by the Ministry of Justice, and which brought together (...) leading experts to discuss and debate the issues. A one-day public conference was held at the Institute for Government in July. In September 2014, the EAP research team submitted its findings to the Ministry of Justice. (shrink)

The World Health Organization (WHO) has identified mental health as a priority for global health promotion and international development to be targeted through promulgation of evidence-based medical practices, health systems reform, and respect for human rights. Yet these overlapping strategies are marked by tensions as the historical primacy of expert-led initiatives is increasingly subject to challenge by new social movements — in particular, disabled persons' organizations (DPOs). These tensions come into focus upon situating the WHO's mental health policy (...) initiatives in light of certain controversies arising under the Convention on the Rights of Persons with Disabilities (CRPD), particularly as it applies to persons with mental (psychosocial) disabilities. I examine two such controversies — concerning, respectively, the legitimacy of involuntary psychiatric interventions and the legitimacy of regimes of substitute decision-making. These controversies illustrate the radical challenges to global and domestic mental health policy that have gained new momentum through the participation of DPOs in the CRPD process. At the same time, they illustrate the need for ongoing, inclusive forums for deliberation at the nexus of mental health policy and human rights, aimed at enabling human flourishing within a framework of respect for diversity. (shrink)

The World Health Organization has in the last decade identified mental health as a priority for global health promotion and international development, to be targeted through promulgation of evidence-based medical practices, health systems reform, and respect for human rights. Yet these overlapping strategies are marked by tensions as the historical primacy of expert-led initiatives is increasingly subject to challenge by new social movements — in particular, disabled persons’ organizations. These tensions come into focus upon situating the WHO’s contributions (...) to the analysis of global mental health in light of the negotiation and early stages of implementation of the Convention on the Rights of Persons with Disabilities, particularly as it applies to persons with mental disabilities. (shrink)

RESUMEN: Este artículo analiza el sentido e implicaciones del Artículo 12 de la Convención Internacional sobre los Derechos de las Personas con Discapadad a la luz de la Observación General Nº1 de su Comité y se centra en determinar su impacto en el régimen general de atribución de personalidad y capacidad jurídica y en el ámbito del Derecho Privado y de Familia del Estado de Qatar. ABSTRACT: This paper analyzes the meaning and implications of Article 12 of the International (...) class='Hi'>Convention on the Rights of Persons with Disabilities in the light of the General Comment No. 1 of its Committee. It focuses on determining the impact of this General Comment to the general regime of personality and capacity attribution in the field of Private law and Family law on Qatar. PALABRAS CLAVE: capacidad jurídica, CDPD, derecho privado, legislación qatarí. KEYWORDS: legal capacity – CRPD – private law – Qatari legislation. (shrink)

Article 12 of the UN Convention on the Rights of Persons with Disabilities guarantees persons with disabilities?the right to legal capacity on an equal basis with others in all aspects of life.? In its General Comment on Article 12, the Committee on the Rights of Persons with Disabilities claims that this guarantee necessitates the abolition of the world?s dominant approach to mental capacity law. According to this approach, (...) when a person lacks the mental capacity to make a particular legal decision at the material time, the state authorizes a third-party to make it on her behalf. The Committee declares such substituted decision-making a violation of the Convention?s guarantee of legal capacity on an equal basis, and therefore demands it be replaced by an allegedly non-discriminatory alternative called supported decision-making. This paper argues that we should reject the Committee?s demand in its current form, because the most influential version of the new approach to supported decision-making suffers from serious conceptual flaws that make it inferior to the mental capacity approach. However, I then argue that the Committee?s demand stems from a legitimate ethical concern with respect and equality that ought to inform the CRPD's implementation process. (shrink)

Article 12 of the UN Convention on the Rights of Persons with Disabilities guarantees persons with disabilities ‘the right to legal capacity on an equal basis with others in all aspects of life.’ In its General Comment on Article 12, the Committee on the Rights of Persons with Disabilities claims that this guarantee necessitates the abolition of the world's dominant approach to mental capacity law. According to this (...) approach, when a person lacks the mental capacity to make a particular legal decision at the material time, the state authorises a third-party to make it on her behalf. The Committee declares such substituted decision-making a violation of the Convention's guarantee of legal capacity on an equal basis, and therefore demands it be replaced by an allegedly non-discriminatory alternative called supported decision-making. This article argues that we should reject the Committee's demand in its current form, because the most influential version of the new approach to supported decision-making suffers from serious conceptual flaws that make it inferior to the mental capacity approach. However, I then argue that the Committee's demand stems from a legitimate ethical concern with respect and equality that ought to inform the CRPD's implementation process. (shrink)

RESUMEN: Este trabajo considera la conceptualización y aplicación de la figura de los ajustes razonables en Qatar tras nueve años desde la ratificación de la Convención sobre los Derechos de las Personas con Discapacidad (CDPD). En él se trata de analizar la situación de igualdad y no discriminación de las personas con discapacidad utilizando como medida de impacto la figura de ajustes razonables. El artículo destaca las principales fallas y virtudes del Estado de Qatar respecto a esta figura y traza (...) un camino a fin de poder avanzar en la inclusión de las personas con discapacidad a la luz de la CDPD. ABSTRACT: This paper considers the conceptualization and application of reasonable acommodation in Qatar after nine years since the ratification of the Convention on the Rights of Persons with Disabilities (CRPD). It analyzes the situation of equality and non-discrimination of people with disabilities using the figure of reasonable adjustments as an impact measure. The article highlights the main failures and virtues of the State of Qatar regarding reasonable accommodation and draws a path to move forward in the inclusion of people with disabilities in the light of the CRPD. PALABRAS CLAVE: ajustes razonables, igualdad, CDPD, Qatar. KEYWORDS: reasonable accommodation, equality, CRPD, Qatar. (shrink)

Law 49/2018, of August 14, created the Portuguese legal regime of the assisted decision-making (capacity), thus eliminating the legal institutes of interdiction and disqualification, provided for in the Civil Code (CC). The aim of this legal regime was to embed a new vision of disability based on a model of rights, that grants people with disabilities an independent and autonomous life and reflects the acceptance of the International Convention on the Rights of Persons (...) class='Hi'>with Disabilities (CRPD) guidelines. This paper intends to discuss the ‘new’ Portuguese legal system regarding the legal capacity of persons with disabilities and its role in valuing the expression of the real will of people with disabilities. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Convention for Protection of Human Rights and Dignity of the Human Being with Regard to the Application of Biology and Biomedicine: Convention on Human Rights and BiomedicineCouncil of EuropePreambleThe Member States of the Council of Europe, the other States and the European Community signatories hereto,Bearing in mind the Universal Declaration of Human Rights proclaimed by the General Assembly of the United Nations on (...) 10 December 1948;Bearing in mind the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950;Bearing in mind the European Social Charter of 18 October 1961;Bearing in mind the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights of 16 December 1966;Bearing in mind the Convention for the Protection of Individuals with Regard to Automatic Processing of Personal Data of 28 January 1981;Bearing also in mind the Convention on the Rights of the Child of 20 November 1989;Considering that the aim of the Council of Europe is the achievement of a greater unity between its members and that one of the methods by which that aim is to be pursued is the maintenance and further realisation of human rights and fundamental freedoms;Conscious of the accelerating developments in biology and medicine;Convinced of the need to respect the human being both as an individual and as a member of the human species and recognising the importance of ensuring the dignity of the human being; [End Page 277]Conscious that the misuse of biology and medicine may lead to acts endangering human dignity;Affirming that progress in biology and medicine should be used for the benefit of present and future generations;Stressing the need for international co-operation so that all humanity may enjoy the benefits of biology and medicine;Recognising the importance of promoting a public debate on the questions posed by the application of biology and medicine and the responses to be given thereto;Wishing to remind all members of society of their rights and responsibilities;Taking account of the work of the Parliamentary Assembly in this field, including Recommendation 1160 (1991) on the preparation of a Convention on bioethics;Resolving to take such measures as are necessary to safeguard human dignity and the fundamental rights and freedoms of the individual with regard to the application of biology and medicine;Have agreed as follows:Chapter IGeneral provisionsArticle 1. (Purpose and object)Parties to this Convention shall protect the dignity and identity of all human beings and guarantee everyone, without discrimination, respect for their integrity and other rights and fundamental freedoms with regard to the application of biology and medicine.Each Party shall take in its internal law the necessary measures to give effect to the provisions of this Convention.Article 2. (Primacy of the human being)The interests and welfare of the human being shall prevail over the sole interest of society or science.Article 3. (Equitable access to health care)Parties, taking into account health needs and available resources, shall take appropriate measures with a view to providing, within their jurisdiction, equitable access to health care of appropriate quality. [End Page 278]Article 4. (Professional standards)Any intervention in the health field, including research, must be carried out in accordance with relevant professional obligations and standards.Chapter IIConsentArticle 5. (General rule)An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it.This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks.The person concerned may freely withdraw consent at any time.Article 6. (Protection of persons not able to consent)1. Subject to Articles 17 and 20 below, an intervention may only be carried out on a person who does not have the capacity to consent, for his or her direct benefit.2. Where, according to law, a minor does not have the capacity to consent to an intervention, the intervention may only be carried out with the authorisation of his or her representative or an authority or a person or... (shrink)

According to what we propose to call “the competence model,” competence is a necessary condition for valid informed consent. If a person is not competent to make a treatment decision, the decision must be made by a substitute decision-maker on her behalf. Recent reports of various United Nations human rights bodies claim that article 12 of the Convention on the Rights of Persons with Disabilities involves a wholesale rejection of this model, regardless of whether (...) the model is based on a status, outcome, or functional approach to competence. The alleged rationale of this rejection is that denying persons the right to make their own treatment decisions based on an assessment of competence necessarily discriminates against persons with mental disorders. Based on a philosophical account of the nature of discrimination, we argue that a version of the competence model that combines supported decision-making with a functional approach to competence does not discriminate against persons with mental disorders. Furthermore, we argue that status- and outcome-based versions of the competence model are discriminatory. (shrink)

The increasing focus on disability rights—as found, for instance, in the U.N. Convention on the Rights of Persons with Disabilities —challenges philosophical imaginaries. This article broadens the philosophical imaginary of freedom by exploring the relation of dependence, independence, and interdependence in the lives of people with disabilities. It argues that traditional concepts of freedom are rather insensitive to difference within humanity, and that the lives of people with severe disabilities challenge (...) philosophers to argue and conceptualize freedom not only as independence and interdependence but also as dependence. After tracing this need through a Hegelian understanding, via Julia Kristeva's work on disability, and finally the CRPD, it concludes that a unified solution might not be possible. Hence, it argues that disability issues necessitate philosophical modesty. (shrink)

I explore the usefulness of Martha Nussbaum's capabilities approach in regard to the UN Convention on the Rights of Persons with Disabilities (CRPD). The CRPD aims at empowering people with disabilities by granting them a number of civil and political, but also economic, social and cultural rights. Implementing the CRPD will clearly be politically challenging and also very expensive for states. Thus, questions might arise as to whether the requirements set in the (...) CRPD can be justified from an ethical perspective. I will first investigate if Nussbaum's capabilities approach provides support for the rights claimed in the CRPD. Second, I will investigate to what extent Nussbaum's capabilities approach is a useful tool to set priorities among rights in the course of the implementation of the convention. This is an urgent question because seen realistically, it will not be possible to realize all rights at once and thus some rights need to receive greater priority than others. I will argue that the capabilities approach can be regarded as supporting the rights specified in the CRPD, but that it proves unable to guide the implementation process due to an insufficient grounding of the capabilities. Employing the capabilities approach thus leads to only limited results. (shrink)

Disability laws are crucial in ensuring a life of dignity for persons with disabilities. However, they remain limited and ineffective in the absence of adequate knowledge and awareness of the experiences with disability. The limitedness of disability laws has been spoken of in cases where the full realization of rights is subject to technological, philosophical, and market dynamics. In many cases, the law is also weakened by negative cultural beliefs and social perceptions of disability. And (...) then there are cases where disability laws perpetuate or tolerate oppression and violence. Despite their limitedness, disability laws offer normative content to facilitate engagement and critique for reform. In terms of what disability laws ‘ought’ to be, scholars write, that they should be about disabled people and the meanings provided by them. This objective has and can be fulfilled with the aid of disability studies that go beyond the inquiries of law with the right kind of research tools to theorize and re-theorize concepts and meanings about disability. Disability studies, in other words, represent the living conditions of disabled persons and the questions of how disability and/or impairment should be defined. This chapter examines the interaction between disability law and disability studies through the prism of the Convention on the Rights of Persons with Disabilities (CRPD). While discussing the models of disability (medical, social, human rights, and relational-community models) and agendas for reforming the CRPD, the chapter highlights the importance of new concepts and approaches. Further, the potential of disability laws, CRPD in particular, has been discussed keeping in mind the application of its core principles across different sectors (with a special focus on the Marrakesh treaty and copyright laws). (shrink)

The application of human right frameworks is an increasingly important part of efforts to accelerate progress in global mental health. Much of this has been driven by several influential legal and policy instruments, most notably the United Nations’ Convention on the Rights of Persons with Disabilities, as well as the World Health Organization’s QualityRights Tool Kit and Mental Health Action Plan. Despite these significant developments, however, much more needs to be done to prevent human (...) class='Hi'>rights violations. This chapter focuses on a critical component of this broader challenge, which is the question of how best to regulate and reduce the use of coercive measures. The recent literature on coercion in psychiatry – which addresses involuntary commitment, seclusion, restraint, and forced medication – represents a useful resource that can help guide tractable solutions in global mental health. These issues are evaluated from the perspective of global health governance, and several general recommendations are made in order to improve monitoring and enforcement, provide guidance for domestic legislative reform, and strengthen health systems. (shrink)

(OPEN ACCESS) In this article, I explore the implications of three moral grounds for the justification of supported voting – respect as opacity, respect as equal status, and respect as political care. For each ground, I ask whether it justifies surrogate voting for voters unable to either communicate or give effect to their electoral judgments, due to some cognitive or communicative disability. (Henceforth: incommunicability cases.) I argue that respect as opacity does not permit surrogate voting, and equal status does not (...) justify such support – although the latter account can make sense of the value loss involved in the persistent non-participation of individuals with cognitive and communicative disabilities. Finally, I argue that an account of supported voting based on the ethics of political care can accommodate a pro tanto moral permission to provide surrogate voting as a form of support in incommunicability cases, and it can account for the inclusive approach of the UN Convention on the Rights of Persons with Disabilities to supported decision-making. However, I show that in incommunicability cases, what the political community and individual caretakers ultimately owe to adult fellow citizens as equal members of the political community is some adequate form of political care – but not necessarily surrogate voting. (shrink)

The science and technology of genetic testing is rapidly advancing with the consequences that genetic testing may well offer the prospect of being able to detect the onset of future disabilities. Some recent research also indicates that certain behavioural profiles may have a strong genetic basis, such as the determination to succeed and win or the propensity for risk-taking, which may be of interest to third parties. However, as this technology becomes more prevalent there is a danger that (...) the genetic information may be misused by entities such as employers, insurance companies, educational facilities, and finance companies and that people with particular genetic profiles may be discriminated against.This book explores the different types and the potential uses of genetic testing. The book highlights the ethical and legal dilemmas and the challenges arising as a result of emerging and rapidly advancing genetic science. Chapters in the book assess the importance and impact of the US Genetic Information Non-Discrimination Act (GINA) in the employment and health insurance contexts asking whether it is proving to be an effective tool in addressing the issue of genetic discrimination and alleviating individuals' fears of discrimination. The book then goes on to make the case for regulation at the European Union level in order to protect the privacy of genetic information and to prevent the discriminatory use of genetic information in Europe. It considers what can be learnt from the experience of the US in addressing ethical and legal issues as well as the impact that the UN Convention on the Rights of Persons with Disabilities is having on this debate within the EU. (shrink)

: The Convention on Human Rights and Biomedicine developed by the Council of Europe, now undergoing ratification, is the first international treaty focused on bioethics. This article describes the background of the Convention's development and its general provisions and provides a comparison of its requirements with those of federal regulations governing research with human subjects. Although most provisions are comparable, there are significant differences in scope and applicability, for example, in the areas of compensation for (...) injury, research participation by persons with limited capacity to consent, assisted reproduction, organ transplantation, and research in emergency situations. The Convention represents a milestone in international bioethics and protection of human rights that will probably be referred to with increasing frequency. (shrink)

The protection of national minorities forms a constituent part of the international protection of human rights. General human rights treaties (the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention for the Protection of Human Rights and Fundamental Freedoms and others) create guarantees for the protection of persons belonging to national minorities on the basis of individual human rights. Although the mentioned treaties are (...) not specifically devoted for the protection of national minorities, it is important to underline that non-minorities treaties establish articles of special relevance for persons belonging to national minorities. Non-minorities treaties on the basis of non-discrimination and equality oblige the contracting states to ensure equal treatment of persons, including those belonging to national minorities. It may be noticed that non-minorities treaties provide the protection for persons belonging to national minorities indirectly through the interpretation of the ambit of general human rights. The core question is whether the protection granted on the basis of general human rights is sufficient for the effective protection of persons belonging to national minorities. The aim of the article is to analyze general and specialized international legal grounds of special significance for persons belonging to national minorities in order to determine the particularities of the protection granted for them. The conclusion is drawn that general human rights alone do not effectively protect national minorities: general human rights contribute to the protection of persons belonging to national minorities as a supplement element that inextricably interrelates with specialized rights together comprising the protection devoted to national minorities. (shrink)

Most democratic countries either limit or deny altogether voting rights for people with cognitive impairments or mental health conditions. Against this weight of legal and practical exclusion, disability advocacy and developments in international human rights law increasingly push in the direction of full voting rights for people with cognitive impairments. Particularly influential has been the adoption by the UN of the Convention on the Rights of Persons with Disabilities in 2007. (...) Article 29 declares that states must ‘ensure that persons with disabilities can effectively and fully participate in political and public life on an equal basis with others, directly or through freely chosen representatives, including the right and opportunity for persons with disabilities to vote and be elected’. This article also argues for the right of all people to vote, including people with cognitive impairments, by adopting a uniquely strategic approach. Firstly, some of the strategic limitations of existing arguments in favour of extending the franchise are highlighted. Most such arguments are flawed because they run the risk of inviting disparaging philosophical commentary which compares disabled people to animals, or because they are based on implausible empirical claims, or because they inadvertently tie the case for voting rights for the disabled to other cases unlikely to ever enjoy widespread acceptance. This article, instead, justifies extending voting rights to all people with cognitive impairments based on a simple cost-benefit analysis that avoids all of these problems. (shrink)

This research aims to examine access to medical treatment during the COVID-19 pandemic for people living with disabilities. During the COVID-19 pandemic, the practical and ethical problems of allocating limited medical resources such as intensive care unit beds and ventilators became critical. Although different countries have proposed different guidelines to manage this emergency, these proposed criteria do not sufficiently consider people living with disabilities. People living with disabilities are therefore at a higher risk of (...) exclusion from medical treatments as physicians tend to assume they have poor quality of life, whereas access to medical treatment should be based on several parameters, including clinical data and prognosis. However, the COVID-19 pandemic shifts the medical paradigm from person-centred medicine to community-centred medicine, challenging the main ethical theories. We reviewed the main guidelines and recommendations for resources allocation and examined their position toward persons with disabilities. Based on our findings, we propose criteria for not discriminating against people with disabilities in allocating resources. The shift from person-centred to community-centred medicine offers opportunities but also risks sacrificing the most vulnerable people. The principle of reasonable accommodation must always be considered to guarantee the rights of persons with disabilities. (shrink)

This paper discusses ethical dilemmas related to social work practice with young adults with autism. It does so via the use of a case study taken from real life practice. The different viewpoints and ethical frameworks of the young person, the young person's parents and the Local Authority (or the Local Authority social worker) are considered and discussed. The competing rights of the 2006 United Nations Convention on the Rights of Persons with (...) class='Hi'>Disabilities (and the Optional Protocol) are also considered. (shrink)

How is Nigeria’s failure to fulfil its obligations as a signatory of the United Nations Convention on the Rights of Persons with Disabilities to be appreciated or even resolved? Answers to this are sought through a seminal criticism of human rights, namely, Simone Weil’s 1942 essay Human Personality. Weil questioned the ability of human rights concepts to cause the powerful to develop the emotional dispositions of empathy for those who suffer. Weil’s insights provide (...) a convincing explanation that the indifference of Nigerian authorities towards the Convention may be accounted for by the weakness of human rights discourse to foster human capacity for empathy and care for those who suffer. Weil’s criticisms will serve as a point of departure for a particular way to circumvent this inadequacy of human rights discourse to achieve disability justice in Nigeria through other means. I argue that Weil, through her concept of attention, grappled with and offers a consciousness of suffering and vulnerability that is not only uncommon to existing juridical human rights approaches, but is achievable through the active participation in the very forms of suffering and vulnerability in which amelioration is sought. To provide empirical content to this argument, I turn to a short-lived initiative of the Nigerian disability movement, which if ethico-politically refined and widely applied, can supply an action-theoretical grounding for and be combined with Weil’s work to elevate agitations for disability justice above human rights to the realm of human obligations. (shrink)

Without extending the historical analysis, this article analyzes the relationship between the legal concept of person with regard to the notion of living independently. The concept is normatively established in Article 19 of the CRPD and is presented as a legal fiction. The legal technique of fictio iuris is the premise for analyzing contemporary problems, for example, the attribution of responsibilities to non-human personalities, such as robots. The article, however, develops the problem of attributing rights to persons (...) with disabilities. The contraposition of robots and disabled people, understood as opposing visions of anthropological and human models, is part of the philosophical dispute between humanism and post- or transhumanism. The conception of man appears different if created in the image and likeness of God, or as the fruit of evolution from primates, or as a transhumanist entity that can be replaced by the robot. The latter vision is rooted in the mechanization of the mind triggered by cybernetics and cognitive sciences and referable to problems of justice theory and political philosophy concerning the inclusion in society of disabled people. In this article I will limit myself to analyzing, against the background of this complex problem, the link between person, legal fiction and the right to disability starting from the criticism addressed by Nussbaum to Rawls based on the convention and following the methodology developed by Marchisio and Curto in order to clarify the legal connection between thirdness, disability, and person.However, I go one step further by including the issue of disability as justice within the evolution of the notion of the legal person, through the inclusion of fictio iuris and rhetorical methodology in positive law, as a criterion for the interpretation of art. 19 CRPD. (shrink)

In asking scholars to reflect on the structures and practices of academic knowledge that render alternative knowledge traditions irrelevant and invisible, as well as on the ways these must change for the academy to cease functioning as an instrument of westernization rather than as an authentically global and diverse intellectual commons, the editor of this special issue of the Journal of Academic Ethics is envisaging a world much needed and much resisted. A great deal of the conversation about diversity in (...) higher education emphasizes, rightly, the need for an international and ethnically diverse population of scholars and students. Less attention is paid to the value of cognitive diversity—the diversity of cognition generated by cognitive disabilities. As one aspect of intellectual diversity, cognitive diversity promises novel ways of thinking and new understandings of what knowledge is, who makes it, and how it is made. The unique value of cognitive diversity is its insistence on a radical shift in our conception of who can know and who can produce knowledge. Insisting on the inclusion, as scholars, of persons with minds labelled disabled, an epistemology of disability pushes us to reform the much criticized but still dominant notion of the expert and scholar as able-bodied and hyper-rational. (shrink)