Abstract
This article considers the implications of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) on the inspection standards of human rights monitoring bodies such as the Council of Europe's (COE) Committee on the Prevention of Torture (CPT). It will be suggested that the standards of human rights monitoring bodies such as the CPT need to be reformulated to reflect the human rights of persons with disabilities as articulated in the CRPD and in particular the ‘paradigm shift’ in thinking on legal capacity as set out in Article 12. Inspection standards should examine detention of persons with disabilities as an unjustifiable interference with their legal capacity. The article argues that the CPT should further embed the right to independent living and inclusion in the community in their standards in line with Article 19 of the CRPD. Article 12 of the CRPD requires a move away from guardianship and detention in institutions towards a supported decision-making model that facilitates persons with disabilities in exercising their legal capacity. It is argued that the standards need to reflect the supported decision-making approach as the European Court of Human Rights through its case law is edging towards an interpretation of legal capacity in line with Article 12 of the CRPD. The article also discusses the trend in other regional human rights systems such as the Organization of American States (OAS) towards the supported decision-making model. It will be contended that involuntary detention and treatment of persons with mental health problems is inconsistent with the CRPD and that the CPT and similar bodies have a role in directing states away from this form of substitute decision-making towards supported decision-making models that comply with international human rights law.
Citation: O’Mahony, Charles, ‘Legal capacity and detention: implications of the UN disability convention for the inspection standards of human rights monitoring bodies’ (2012) 16 The International Journal of Human Rights, 883.
Link to article.