2.1  Scope: Types of Harm Included in ‘exploitation, violence and abuse’

A debate that was perhaps deserving of greater attention than it received was the scope of the harms which should fall within article 16. The original wording in Mexico’s draft text of the Convention, at the first session of the Ad Hoc Committee, recognized that disabled people were ‘particularly vulnerable to different forms of violence …’, but did not list those forms of violence.¹⁰ In the many submissions made at the second session, there were a number of different formulations of rights that recognized various separate harms. Venezuela suggested a right around freedom from sexual abuse and institutional violence,¹¹ while the European Union’s submission made reference to an obligation to protect disabled people from ‘all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation’.¹² The Bangkok draft Page Id: 468ReferencesConvention on the Rights of Persons with Disabilities (United Nations [UN]) 2515 UNTS 3, UN Doc A/RES/61/106, Annex, GAOR 61st Session Supp 49, 65Art.16(p. 469) recommendations made a similar requirement,¹³ while DPI Japan called for an obligation around economic exploitation.¹⁴

However, the Draft Elements produced by the Chair of the Working Group as a basis for discussion at the Working Group, introduced an obligation to protect from ‘all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse’,¹⁵ echoing the list in article 19 of the CRC. This list was changed slightly in the final draft text submitted to the third session of the Ad Hoc Committee by the Working Group, stating that the obligation was to protect from ‘all forms of violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual exploitation and abuse’.¹⁶ This iteration of the Convention situated the right to freedom from violence and abuse as a separate right, with a significant expansion of content. Now included was a requirement to protect disabled people from ‘forced interventions or forced institutionalization aimed at correcting, improving or alleviating any actual or perceived impairment, and abduction’ and to prohibit such action in draft article 12(2).

As is recounted in the following section, the presence of this paragraph dominated the negotiations on article 16, leaving the discussions around other types of harm somewhat lacking. There was, however, some discussion at the third session as to what harms should be included in the list in paragraph 1. Many contributors called for a longer list that added other harms, including a distinction between mental and physical abuse,¹⁷ abandonment,¹⁸ economic exploitation,¹⁹ sexual exploitation,²⁰ harassment,²¹ victimization,²² and emotional abuse.²³ There was also a call to move abduction from the contentious paragraph 2 into the list in paragraph 1.²⁴ Following the discussions, the Mexican delegation revised its proposal to include a list of harms that reflected the discussion, providing a list in the first paragraph that was significantly longer than the Working Group text. This stated as follows:

1. State Parties recognize that persons with disabilities are at greater risk, both within or outside the home, of abandonment, violence, injury or mental or physical abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual and economic exploitation and abuse.²⁵

Page Id: 469ReferencesConvention on the Rights of Persons with Disabilities (United Nations [UN]) 2515 UNTS 3, UN Doc A/RES/61/106, Annex, GAOR 61st Session Supp 49, 65Art.16, (1)Art.16, (2)Convention on the Rights of the Child (United Nations [UN]) 1577 UNTS 3, CTS 1992/3, UN Doc A/RES/44/25, UNTS Reg No I-27531Part I, Art.19(p. 470) At the fourth Ad Hoc session, there was further support for the reference to abandonment,²⁶ economic abuse,²⁷ harassment,²⁸ and abduction.²⁹ China and Argentina’s draft submissions removed mention of sexual violence, while South Africa argued for its continued inclusion, as it was a common form of ‘dehumanizing’ abuse faced by disabled people.³⁰

By the fifth session, there was still disagreement as to how to approach this issue.³¹ South Africa suggested a form of words close to the final text in article 16, which removed a list of types of harm and instead called for protection from ‘all forms of neglect, exploitation, violence and abuse’.³² Australia, supported by New Zealand, suggested a wording which made it clear that the harms listed were not exhaustive, stating the obligation to protect from ‘all forms of harm, including …’, but it was clear that if harms were to be listed there was disagreement about what those should be.³³ There was particular disagreement around the specific reference to economic exploitation. New Zealand, Chile, and Jordan argued for its inclusion, while Russia was concerned it was too vague a term.³⁴ Jordan observed that the phrase did appear elsewhere in international human rights law, specifically in article 32 of the Convention on the Rights of the Child,³⁵ but the European Union was opposed to citing it together with sexual exploitation.³⁶

There was significant support for the South African approach, as it left the scope of the article open and could include a wide range of harms. This was the approach adopted in the text from this point onwards, but there continued to be debate on the issue. At the seventh session of the Ad Hoc Committee, Canada called for a specific reference to gender-based violence, while Mexico continued to call for a non-exhaustive list.³⁷ The final text of article 16(1) recognized Canada’s concerns, making specific mention of the inclusion of the ‘gender-based aspects’ of exploitation, violence, and abuse within the scope of article 16. However, Mexico’s call for a non-exhaustive list of examples was not taken up, and the text remained from the seventh session as it now appears in the final text of the Convention, referring simply to ‘all forms of exploitation, violence and abuse’.

2.2  Torture, Involuntary Treatment, and Informed Consent

The most significant and contentious discussions on article 16 concerned its overlap with torture, and particularly involuntary treatment and institutionalization in this context. The issue of involuntary treatment as an incidence of torture, cruel, or inhuman and degrading treatment or punishment has long been a question for international human rights law, particularly in the context of mental health. It has generally been held in Page Id: 470ReferencesConvention on the Rights of the Child (United Nations [UN]) 1577 UNTS 3, CTS 1992/3, UN Doc A/RES/44/25, UNTS Reg No I-27531Part I, Art.32(p. 471) human rights law that treatment of ‘competent’ patients should not take place without informed consent,³⁸ but this raised the question of therapeutic treatment for mental health patients who were considered unable to consent.³⁹ Human rights jurisprudence has held that treatment which would otherwise be considered in violation of the threshold for inhuman or degrading treatment or punishment should not be considered so where there was a ‘therapeutic’ justification.⁴⁰ The United Nations Special Rapporteur on Torture called this approach into question in his 2013 report,⁴¹ but such a strong statement did not exist at the time of the negotiations on the CRPD in 2003–2006—and arguably, the Special Rapporteur’s statements were themselves influenced both by the Convention and the forceful points made by Disabled People’s Organizations (DPOs) and some member states during the negotiations. As has been recounted in the previous chapter, the issue of involuntary treatment and institutionalization was widely debated in the negotiations on article 15, but the disagreements over how this issue should be approached also dominated the discussions on article 16, given the overlap between the two rights.

Whether or not the issue of exploitation, violence, and abuse was a separate issue to the action prohibited by the right to be free from torture, cruel, or inhuman, or degrading treatment or punishment was an early point of discussion. Treatment which falls short of torture is often caught by the latter prohibitions on cruel, inhuman, or degrading treatment or punishment and the actions which fall within this scope arguably overlap significantly with those in article 16, with the exceptions being economic exploitation and harassment.⁴² Both of these are significant problems for disabled people, but neither easily falls within the scope of torture.⁴³

It was clear even from the first iteration of the right in Mexico’s draft text, which was submitted to the first session of the Ad Hoc Committee, that the issue of violence as something separate from, or additional to, torture, should be considered in the scope of a right for disabled people. This was couched in the following terms:

States Parties recognize that persons with disabilities are particularly vulnerable to different forms of violence, as well as torture and other cruel, inhumane or degrading treatment or punishment, in public and private spheres. Therefore, States shall guarantee respect for the dignity and integrity of persons with disabilities.⁴⁴

At that first session, it was noted in submissions that the UN Convention Against Torture (UNCAT) had been used by disabled people to gain human rights protection from violence, but the submissions to the second session began to call for a separate article to deal Page Id: 471ReferencesConvention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (United Nations [UN]) 1465 UNTS 85, UNTS Reg No I-24841, UN Doc A/RES/39/46Convention on the Rights of Persons with Disabilities (United Nations [UN]) 2515 UNTS 3, UN Doc A/RES/61/106, Annex, GAOR 61st Session Supp 49, 65Art.3Art.8Art.15Herczegfalvy v Austria, Merits and just satisfaction, App No 10533/83, A/244, IHRL 2840 (ECHR 1992), [1992] ECHR 83, (1993) 15 EHRR 437, [1992] EuGRZ 535, (1993) 15 RTDH 431, (1993) 14 HRLJ 84, (1992) 6 ÖIM-Newsletter 25, 24th September 1992, Council of Europe; European Court of Human Rights [ECHR] IHRLĐorđević and Đorđević and European Disability Forum (intervening) v Croatia, Admissibility, merits and just satisfaction, App No 41526/10, ECHR 2012-V, IHRL 1912 (ECHR 2012), [2012] ECHR 1640, 24th July 2012, Council of Europe; European Court of Human Rights [ECHR] IHRL(p. 472) specifically with the issue of exploitation, violence, and abuse. At this stage, the suggested right was conceptualized in a number of different ways, overlapping with a number of different issues, each of which recognized specific abuses that disabled people were (and remain) subjected to. However, the World Network of Users and Survivors of Psychiatry (WNUSP) suggested a right to freedom from torture, right to life, liberty, bodily and mental integrity, which encompassed issues of abuse and exploitation focused specifically around involuntary interventions and detention, an issue which subsequently became the focus of the negotiations.⁴⁵

The Draft Elements produced for discussion at the Working Group by the Chair, in December 2003,⁴⁶ maintained the issue of violence and abuse as part of a wider right to be free from torture, inhuman, or degrading treatment or punishment. Other contributions to the Working Group also recognized the issue of abuse and exploitation of disabled people, particularly in the context of institutionalization,⁴⁷ and how this was to be framed in the context of a specific right became a key point of contention in the later sessions of the Ad Hoc Committee. By the end of the Working Group, however, there was a specific and separate right to freedom from violence and abuse, in the form of draft article 12.⁴⁸ This draft formed the basis for discussions at the third session of the Ad Hoc Committee, which centred in particular around paragraph two, which stated that:

Such measures [in paragraph 1] should prohibit, and protect persons with disabilities from, forced interventions or forced institutionalization aimed at correcting, improving or alleviating any actual or perceived impairment, and abduction.⁴⁹

The discussion around the need to keep a right to freedom from violence and abuse as a separate provision thus began to centre on the issue of how forced intervention and institutionalization was to be dealt with in the Convention. Ireland, representing the European Union, suggested an amendment that permitted forced intervention and institutionalization in ‘exceptional circumstances’, as did Canada.⁵⁰ In contrast, WNUSP called for the retention of such a provision in both draft article 11 on torture and draft article 12. This allowed for a strong framing of such interventions as treatment amounting to torture, cruel, inhuman or degrading treatment or punishment, but its inclusion in draft article 12 also allowed for a recognition that such actions could take place in private, by non-state actors.⁵¹

The debate continued into the fourth session, where it became a significant point of contention. A number of parties to the negotiations, both states and DPOs, entered substantial amendments to draft article 12 and there were a number of disagreements around how the issue of forced intervention and institutionalization should be dealt (p. 473) with, and in particular the place of informed consent in this process.⁵² The DPOs, and in particular WNUSP, wanted a complete prohibition of involuntary treatment and institutionalization.

States parties, in contrast, wished to retain the provisions, although there was disagreement as to how this should be achieved. The EU’s amendment altered every section of the text from the Working Group report, and redrafted article 12(2) by replacing it with four further paragraphs that provided for a partial prohibition of forced interventions. Their suggested text, however, allowed for an exception where the individual ‘lacks capacity to give or withhold informed consent’, in situations where an intervention was necessary to ‘prevent an imminent danger’ to the individual or others, and that any such interventions would be carried out in the individual’s best interests.⁵³

In contrast, New Zealand took a stronger line. The debate around torture had become so entangled with questions around involuntary treatment that New Zealand advocated an entirely separate article on the issue of free and informed consent.⁵⁴ In its submission it advocated the abolition of involuntary treatment along with forced institutionalization on the basis of disability. Where involuntary treatment had not been abolished, its submission stated that it should only be used in ‘exceptional circumstances prescribed by law and minimised through the active promotion of alternatives’. As a result, its submitted amendment regarding draft article 12 removed paragraph 2 entirely and added in article 12(1) a clause moved from article 11 stating that states had an obligation to:

1. a.  prevent persons with disabilities from being subjected to torture or cruel, inhuman or degrading treatment or punishment.

In its written submission, New Zealand stated that there should never be any permitted exceptions to violence and abuse. It considered that these abuses were so serious that they should be framed in a discrete article and a prohibition should not be diluted or confused with issues around informed consent. It considered that if its suggestion for a specific article on informed consent was to replace the specific article on torture, then the duty to prevent torture should also be included in draft article 12.⁵⁵

As has been documented in this volume and elsewhere,⁵⁶ this disagreement around the importance of informed consent and the issue of capacity was a significant point of tension in the Convention negotiations. The issue of legal capacity, which became article 12 in the final text, was a key point for many DPOs involved in the negotiations, while the idea of universal legal capacity—and the potential prohibition of involuntary treatment and substitute decision-making—was a particular objection of states. The main focus of debate around the correct interpretation of the Convention since the finalization of the (p. 474) text and its coming into effect has been around the right to equality before the law as enshrined in article 12.⁵⁷ Moreover, the debate around informed consent with regard to violence and abuse shows how key the issue of legal capacity is to the general understanding of many of the other rights in the Convention.

The issue remained unresolved until the fifth session. The facilitator’s text⁵⁸ and the proposed modifications by the EU⁵⁹ still retained provisions for involuntary interventions in the individual’s best interests within draft article 12. In contrast, New Zealand highlighted that ‘institutionalisation and involuntary care for disabled people has violated many individual human rights […] and perhaps constitute one of the most appalling ongoing and systematic abuses of human rights experienced by disabled people across the globe’.⁶⁰ It considered that a more effective approach was needed in the Convention to deal with this and that, similar to the draft article on legal capacity, ‘this issue requires a “paradigm” or “conceptual” shift in our thinking to ensure a forward looking convention, and one that does not erode existing human rights’.⁶¹ It reiterated its view that the issues of torture or cruel, inhuman, or degrading treatment or punishment, and violence and abuse were so serious that they should not be diluted or obscured by issues around informed consent and the latter should be dealt through a separate article.⁶² The European Union agreed with this approach at the fifth session, calling for a separate provision around medical treatment, which would accommodate disabled people who were unable (p. 475) to express consent. This was supported by a number of other future member states.⁶³ However, others remained concerned that some forms of institutionalization could, and should, fall within the concept of torture,⁶⁴ as could social interventions such as removing a child from the home,⁶⁵ sterilization,⁶⁶ and organ donations.⁶⁷

It was recognized during these discussions that there was significant overlap with the issue of informed consent and the discussions around draft article 9 and the issue of legal capacity, but the issue was not revisited again in relation to draft article 12. The final text of article 16 does not contain reference to involuntary treatment or institutionalization, but the issue was specifically referenced by the CRPD Committee in General Comment No 1 on article 12.⁶⁸ This focus during the negotiations was, and remains, perhaps unfortunate, as the other types of harm which could fall within the scope of article 16 were discussed in much less detail than they seem to have warranted, given the wide level of such abuse and exploitation that occurs outside of the context of psychiatric treatment. In particular, the issue of abuse in private residences, and the structure of State obligations to monitor and prevent such abuse, was little explored, although the scope of the article does take this into account.

2.3  Vulnerability of Disabled People and Prevention of Harm

The next significant issue which was raised at an early stage in the negotiations was the issue of the ‘vulnerability’ of disabled people with regards to violence. The wording of draft article 9 presented by Mexico at the first session of the Ad Hoc Committee called for states to ‘recognize that persons with disabilities are particularly vulnerable to different forms of violence’, while a draft article 4(2) suggested that ‘special measures’ of protection were required for disabled people because of their ‘special situations of vulnerability’.⁶⁹ There were several voices of disquiet with regard to this wording at the Seminar of Quito.⁷⁰ It was generally felt that this suggested that disabled people were ‘inherently’ vulnerable to harm and therefore in need of protection—though this objection was mainly made about draft article 4, which concerned people with profound disabilities, rather than draft article 9. Even so, it was suggested at this point that issues of ‘overprotection’ should be added to the text of draft article 9, recognizing the problems this can cause.⁷¹

This position suggests that people with severe or profound disabilities were seen as being ‘at special risk’ of experiencing a violation of their rights and freedoms and that specific measures were needed to be taken to protect them from violence and abuse. Page Id: 475ReferencesConvention on the Rights of Persons with Disabilities (United Nations [UN]) 2515 UNTS 3, UN Doc A/RES/61/106, Annex, GAOR 61st Session Supp 49, 65Art.16(p. 476) However, it was also suggested during the Seminar at Quito that vulnerability should be understood as a ‘universal’ issue and that the cause was the ‘uneven distribution of risks’ and in particular the risk of poverty. It was argued that the approach to vulnerability should be to work to mitigate this risk, alongside the development of community and social institutions, and education—with a specific focus on inclusivity.⁷²

This issue received relatively little discussion at the Working Group, with just a few references to the special or ‘heightened’ vulnerability of disabled people, or specific impairment groups. However, the text presented for discussion at the Third Ad Hoc session suggested that disabled people should be seen as being at greater risk of harm, stating in draft article 12(1) that:

States Parties recognize that persons with disabilities are at greater risk, both within and outside the home, of violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual exploitation and abuse. [ … ]⁷³

The main discussion around this issue of risk was for a continued recognition that disabled people were at a greater risk of harm than non-disabled people, but that some groups of disabled people were ‘more’ at risk than others was expressed, particularly women and children.⁷⁴ The issue of whether disabled people were any more, or less, vulnerable to abuse than non-disabled people continued to be a point of discussion at the fourth session of the Ad Hoc Committee and Japan specifically noted that care must be taken in the drafting of the article to ensure that disabled people were not cast as ‘vulnerable and necessarily targets of abuse’.⁷⁵ This reflects the disquiet voiced at the Seminar at Quito that the wording of the draft provisions suggested that disabled people were inherently vulnerable.

At the Fifth Session of the Ad Hoc Committee, which was the last time the provisions around exploitation, violence, and abuse were discussed in any significant detail, this issue was revisited a final time. The facilitator’s text did include a reference to the ‘particular vulnerability’ of disabled people in the context of armed conflict,⁷⁶ and the International Disability Caucus’ suggested text included a broader claim, stating in draft article 12(1) that ‘States Parties recognize that persons with disabilities may be at greater risk, both within and outside the home, of all forms of violence and abuse.’⁷⁷ Additionally, the issue of the ‘particular vulnerability’ of women and girls was raised by Canada. Ultimately, this position is what has been enshrined in the final text of 16(1), with the final part of the paragraph making particular reference to the ‘gender-based aspects’ of exploitation, violence, and abuse. The particular experience of harm by women and girls has also been the Page Id: 476ReferencesConvention on the Rights of Persons with Disabilities (United Nations [UN]) 2515 UNTS 3, UN Doc A/RES/61/106, Annex, GAOR 61st Session Supp 49, 65Art.16, (1)(p. 477) focus of the Committee’s early work on interpretation of the Convention, in its General Comment No 3 on article 6.⁷⁸

The issue of the general vulnerability of disabled people was removed from the final text and there is no reference to any specific vulnerability of disabled people as a broad group. That disabled people do experience greater levels of exploitation, violence, and abuse is a fact and effectively constitutes the ultimate motivation for article 16. The response of states to this increased level of harm has frequently been to remove disabled people from society to an institution. However, segregating disabled people from society in institutions, where they cannot be seen, leads to abuse and violence, a point made by both New Zealand and Uganda at the Third Ad Hoc Session—thus de-institutionalization is an important part in removing a social cause of exploitation, violence, and abuse. Even where large institutions are not used, disabled people may still be removed from the place of abuse to a group home or into an adult foster/guardianship placement. While this may work to protect the disabled person from the immediate harm, it does little to prevent such harm reoccurring in the future and additionally works to undermine the individual’s other Convention rights.⁷⁹

The central ethos of the CRPD is the ‘paradigm shift’ to a socio-contextual approach to disability, which focuses on the removal of social barriers to exclusion of disabled people from society, along with the social causes of harms.⁸⁰ In this context, the response to harm cannot be to consider that disabled people are ‘inherently vulnerable’, but to focus on what social issues may be causing the harm.⁸¹ In the context of a policy of greater inclusion of disabled people within society, the protection offered to disabled people cannot take the form of segregation. Moreover, within the wider aim of the Convention which is to afford disabled people equal enjoyment of rights with non-disabled people the answer cannot be to remove rights, by removing someone from a place they choose to live, or from people with whom they choose to associate.

The final text of article 16 does not retain any reference to the particular vulnerability of disabled people, nor a reference to a ‘greater risk’ of harm. It is also noticeable that the language of article 16 is not only framed in terms of ‘protection’, but also active ‘prevention’ centred around the disabled person, suggesting that article 16 should not be interpreted as a back door to out-dated, paternalistic models of protection. While article 16(1) is framed in the language of ‘protection’, the other provisions focus around the prevention of harm and deal with the physical and psychological after-effects.

The incorporation of preventative obligations into article 16 was not entirely without contest, with some parties considering it unnecessary repetition, while others felt that it was important to emphasize this aspect of state obligation. The language of prevention appears for the first time in the European Union’s draft Convention at the Third Ad Hoc session with regards to cruel, inhuman, or degrading treatment of persons with Page Id: 477ReferencesConvention on the Rights of Persons with Disabilities (United Nations [UN]) 2515 UNTS 3, UN Doc A/RES/61/106, Annex, GAOR 61st Session Supp 49, 65Art.16(p. 478) disabilities; in contrast, the following provision around exploitation, violence, and abuse only features a duty to protect.⁸² The Chair’s draft text at the Third Ad Hoc Session is worded in a similar way, with a phrase that has eventually survived intact through to the final Convention:

States Parties shall take all appropriate legislative, administrative, social and educational measure to protect persons with disabilities [ … ]⁸³

However, the text presented at the Working Group follows a structure similar to that of the final Convention provision. Paragraph 1 concerns the protection of disabled people, but paragraph 3 places an obligation to prevent harm through support and paragraph 4 through effective monitoring.⁸⁴ This document formed the basis of discussion at the third session of the Ad Hoc Committee and during the discussion Mexico argued that the focus of article 16 should be on prevention of exploitation, violence, and abuse, rather than just protection. Moreover, it argued that this should be made clear at the outset in paragraph 1, suggesting the following for what was then draft article 12(1):

[ … ] States Parties shall therefore take all appropriate measures to protect persons with disabilities, both within and outside the home, from all forms of violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual exploitation and abuse, and to prevent these forms of violence and abuse. [Mexico’s text emphasis added].⁸⁵

In contrast, the European Union had suggested that the text of draft article 12(3) on prevention overlapped with the text in 12(1) to the extent that 12(3) could be omitted entirely.⁸⁶ By the fifth session of the Ad Hoc Committee, the draft Convention retained a separate provision around prevention, featuring in the Facilitator’s Text draft article 12(2), which at the time stated that:

States Parties shall also take all appropriate measures to prevent violence and abuse by ensuring, inter alia, appropriate forms of assistance and support for persons with disabilities and their caregivers, including through the provision of information and education on how to avoid, recognize and report instances of (violence and abuse) above.⁸⁷

The wording ‘shall also take’ remains through to the final version of the Convention, and suggests that the obligations to protect and to prevent are seen as linked but separate obligations on states.

At the fourth session of the Ad Hoc Committee, Mexico had called for the addition of education and training to the requirements of the preventative measures, but it is not clear to whom these refer—whether to disabled people themselves, or to their carers and (p. 479) families, or all three groups.⁸⁸ At the Fifth Ad Hoc Session the Coordinator raised this question, asking if there should be a ‘notion’ of educating disabled people and their families around exploitation, violence and abuse.⁸⁹ It was agreed that an obligation to provide support and particularly access to ‘support groups’ for disabled people was desirable, but there were questions around whether there should be a right to these groups for families and caregivers, linked to the more general question of their rights under the Convention. In addition to this, there was a call for information around abuse in accessible formats and the International Disability Caucus called for a provision requiring ‘information, support and education for persons with disabilities, their families, and persons working with persons with disabilities about how to avoid, recognise, report and seek protection from violence and abuse’.⁹⁰ At the Seventh Ad Hoc Session, the IDC representative also noted the importance of supportive environments in assisting disabled people to feel safe enough to disclose instances of abuse and called for training of professionals and families, as well as disabled people, to learn to recognize signs of abuse and how to report safely.⁹¹ The final text of article 16, therefore, reflects this discussion, with separate obligations in article 16(1) to protect and in 16(2) to prevent harm. The latter obligation is phrased to emphasize that the prevention should be about enabling the disabled person to recognize and report harm and to be supported in doing so, rather than be removed from society in order to prevent harm occurring to him or her. However, it is difficult to separate these two obligations, as will be seen in the discussion below of the specific state obligations under article 16.

3.1  ‘All appropriate legislative, administrative, social, education and other measures to protect’

The first requirement in article 16(1) is that states parties must take ‘all appropriate legislative, administrative, social, education and other measures’ to protect persons with disabilities. The phrase ‘all appropriate measures’ is a common phrase in international human rights instruments and appears elsewhere in the Convention, as well as in other paragraphs of article 16. The phrasing in article 16 echoes that found in article 19 CRC and it is clear that article 16 intends the scope of the protective measures it requires to be very broad, ranging across a number of spheres of state responsibility. This is not something to be confined to the criminal justice process, but must be expanded into social, education, and ‘other’ measures. The word ‘appropriate’ should not be taken to mean that some forms of exploitation, violence, or abuse are permissible.

Page Id: 479ReferencesConvention on the Rights of Persons with Disabilities (United Nations [UN]) 2515 UNTS 3, UN Doc A/RES/61/106, Annex, GAOR 61st Session Supp 49, 65Art.16, (1)Art.16, (2)Convention on the Rights of the Child (United Nations [UN]) 1577 UNTS 3, CTS 1992/3, UN Doc A/RES/44/25, UNTS Reg No I-27531Part I, Art.19(p. 480) The scope in paragraph 1 is notably more expansive than the similar wording in article 2 of the Convention, which refers to the need for ‘effective legislative, administrative, judicial or other measures’ to prevent torture.⁹² Neither that list, nor the one in article 16 CRPD, are intended to be exhaustive, allowing for ‘other measures’ to be included. Even so, interpretations concerning the right to be free from torture, cruel, inhuman, or degrading treatment or punishment have generally focused on issues such as the judicial oversight of arrest and detention⁹³ and monitoring of places of detention⁹⁴, rather than ‘other measures’. That said, the United Nations has recommended both professional training and the promotion of public awareness as key issues in the prevention of torture,⁹⁵ thus the scope of the preventative obligations under article 16 CRPD retain a significant overlap with obligations to prevent torture in article 15 CRPD.

There is little guidance from the CRPD Committee as to the extent to which the obligations in paragraph 1 of article 16 extend beyond legislative and administrative elements, as the concluding observations available to date have primarily focused on these first two. A common observation has been the lack of evidence of any legislative or policy framework dealing with the exploitation of, or abuse or violence aimed at, disabled people.⁹⁶ Equally, the committee has criticized the lack of sufficient funding for any such strategies.⁹⁷ Given the significant overlap with article 15 CRPD—and the clear nature of article 16 as derived from classic prohibitions on torture—the right to freedom from exploitation, violence, and abuse should be seen as a civil and political right and therefore not subject to progressive realization.⁹⁸ It is clear from the concluding observations currently available that the Committee is setting a high standard of expected state action, praising some states for the measures they have taken thus far, but still requiring further action. For example, Austria was praised for the work of its Ombudsman investigating institutional mistreatment, but the Committee remained concerned at the number of continued reports of exploitation, violence, and abuse of disabled people, recommending ‘further measures’ be taken to protect disabled people from exploitation, violence, and abuse.⁹⁹

Page Id: 480ReferencesConvention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (United Nations [UN]) 1465 UNTS 85, UNTS Reg No I-24841, UN Doc A/RES/39/46Part I, Art.2Part I, Art.2, (1)Convention on the Rights of Persons with Disabilities (United Nations [UN]) 2515 UNTS 3, UN Doc A/RES/61/106, Annex, GAOR 61st Session Supp 49, 65Art.15(p. 481) 3.2  ‘Within and outside the home’

Paragraph 1 goes on to state that the obligation to protect disabled people from exploitation, violence, and abuse applies both ‘within and outside the home’. This obligation is to be welcomed, as while disabled people certainly experience violence and abuse within institutional settings, there is also a significant amount of abuse outside of these environments. However, the ethos of the Convention is to move away from the ‘old’ paradigms of how disabled people were conceptualized in law and treated by the state. On this basis, the requirement that disabled people be protected in their homes as well as institutions should be carefully read. The provision, as is the case with the entirety of article 16, is clearly responding to the high level of recorded and/or reported violence against disabled people,¹⁰⁰ a significant amount of it domestic, but this should not be seen as an opening to allow or continue paternalistic protective practises.

Notably absent from the text of article 16 is the phrase ‘on an equal basis with others’, which appears in almost every other substantive right in the Convention,¹⁰¹ and is reflective of the mandate of the Ad Hoc Committee to clearly restate existing human rights in the context of, and with specific application to, disabled people. The absence of the phrase from article 16 could be understood to suggest that disabled people must be treated ‘differently’ from non-disabled people with regards to protection and in particular as an argument for intrusion into their private lives. However, such an interpretation needs to pay heed to both the wider construction of article 16 and the Convention as a whole. An important aim of the Convention is to work towards a greater inclusion of disabled people in society, as full citizens; the response to a higher risk of harm, therefore, cannot be to isolate or exclude disabled people from society, but work to integrate them—obligations placed on states in the context of exploitation, violence, and abuse by article 16(4). The absence of the phrase ‘on an equal basis with others’ reflects the greater experience by disabled people of exploitation, violence, and abuse and the need for specific protective mechanisms that recognize the close relationships of care; but it does not call for other rights to be removed or diminished in the process.

As was discussed earlier in this chapter, there was discussion during the negotiations of how the idea of harm and vulnerability should be conceptualized in the Convention and early versions of what became article 16 used specific phrases suggesting that disabled people were at an increased risk of harm. In many ways, there is surprisingly little opposition recorded on this position from the DPOs present, but it is notable that no such phrase exists in the final text. As Bartlett and Schulze have recently observed,¹⁰² article 16 cannot be read in isolation and it makes little sense to see the provision as opening a door into out-dated and disempowering protective mechanisms—as New Zealand called for during the negotiations, article 16 requires just as much a ‘paradigm shift’ as any other provision.

The Committee’s response to this issue, particularly around the issue of domestic violence, has been to require states parties to integrate disability issues into their wider Page Id: 481ReferencesConvention on the Rights of Persons with Disabilities (United Nations [UN]) 2515 UNTS 3, UN Doc A/RES/61/106, Annex, GAOR 61st Session Supp 49, 65Preamble, (e)Preamble, (r)Art.1Art.3Art.9, (1)Art.10Art.12, (2)Art.13, (1)Art.14, (1)Art.14, (2)Art.15, (2)Art.16, (4)Art.17Art.18, (1)Art.19, (a)Art.21Art.22, (2)Art.23, (1)Art.24, (1)Art.24, (2)Art.27Art.29Art.30(p. 482) strategies and to set up detection mechanisms,¹⁰³ both for within family and institutional environments. As has been recently observed,¹⁰⁴ establishing these mechanisms will require a careful balance on the part of member states to ensure that rights are fully protected. The absence of the phrase ‘equal basis with others’ does allow for different protective measures for disabled people, but these must be responsive to the specific harms that disabled people experience, and not contribute to further harm or the restriction of other rights in the Convention.

3.3  ‘All forms of exploitation, violence and abuse, including their gender-based aspects’

As was discussed earlier in this chapter, the definition of the scope of article 16 in the text of the article was debated—but the debate was dominated by the disagreement around the issue of involuntary detention and treatment. As has been noted by Bartlett and Schulze, this focus overshadowed the need to discuss more precisely the scope and types of harms encompassed under article 16, and in particular how it should be differentiated (if at all) from the right in article 15 CRPD to be free from torture, cruel, or inhuman, or degrading treatment or punishment.¹⁰⁵ While much of the treatment which falls within the scope of article 16 is not torture, much of it could be caught by ‘cruel, inhuman or degrading treatment or punishment’, given the interpretation of that provision in other spheres of international human rights law. The Committee have not maintained a clear line between the two provisions. In considering the interaction of article 6 with the rest of the Convention in General Comment No 3,¹⁰⁶ the Committee did not consider the relationship with article 15, but focused rather on article 16, to capture abuse and violence against disabled women. In General Comment No 1, however, it is clear that article 15 and 16 (along with article 17) are seen to overlap significantly when it comes to the issue of ‘forced treatment by psychiatric and other health and medical professionals’, viewing such conduct as being a violation of all three articles.

Article 16 does, however, have the potential to be broader than article 15, covering financial abuse, along with conduct such as trafficking and economic exploitation, which have struggled to find accommodation within traditional prohibitions on torture. The wording that was retained in article 16(1) is open-ended, referring to ‘all forms of exploitation, violence and abuse’, although Bartlett and Schulze argue that the list of harms proposed by Mexico at the third session of the Ad Hoc Committee should, ‘at a minimum’, provide a starting point for determining the scope of the harms encompassed within article 16. These were ‘abandonment, violence, injury or mental or physical abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual and economic exploitation and abuse’.¹⁰⁷ Determining which of these types of harms fall within the separate categories of ‘exploitation’, ‘violence’, and ‘abuse’, and providing separate definitions for each, is not a simple task. The Committee Page Id: 482ReferencesConvention on the Rights of Persons with Disabilities (United Nations [UN]) 2515 UNTS 3, UN Doc A/RES/61/106, Annex, GAOR 61st Session Supp 49, 65Art.15Art.17(p. 483) has not attempted to separate the categories methodically in concluding observations, and there is no evidence in the travaux of the intentions of the drafters.

However, in its Concluding Observations, the Committee has considered a number of harms to fall within its remit, many of them falling within the scope of this list. Domestic violence, as will be discussed, has been a key focus, but there has also been particular reference to the abandonment of children and their subsequent economic exploitation as beggars by criminal gangs,¹⁰⁸ alongside physical and sexual abuse in the context of institutions.¹⁰⁹ The Committee has also given an indication of the breadth of article 16 in General Comment No 3 on Article 6 CRPD and the rights of disabled women and girls. In considering how that right interacted with article 16, the Committee provided a long, non-exhaustive list of the types of harm that women and girls may experience, which would fall within article 16.¹¹⁰ These included physical and sexual violence, but also other—perhaps more subtle, or controlling—behaviour, specifically linked to disability, such as restricting access to communication aids, or other assistive devices, such as ramps or wheelchairs, as well as the removal of, or refusal to provide care and other supports that enable and assist independent living. This demonstrates the specific harms related to disability and the relationships of care that require a specific response in developing policies which protect disabled people—rather than necessarily treating them on an ‘equal basis with others’ and assuming that mainstream policies will be sufficient.

The reference to the ‘gender-based’ aspects of harm in the final part of paragraph 1 has been a significant focus of the Committee’s concluding observations, where it has noted three problems. Firstly, that there is a lack of clear legislation or policy on violence against women in general,¹¹¹ or where there are measures, these do not include or make provision for disabled women.¹¹² Secondly, that there is frequently insufficient funding allocated to the development of a coherent strategy, including protective measures such as shelters and legal advice.¹¹³ Finally, where these protective measures do exist, they are often not sufficiently accessible for disabled women.¹¹⁴ The Committee has therefore called for Page Id: 483ReferencesConvention on the Rights of Persons with Disabilities (United Nations [UN]) 2515 UNTS 3, UN Doc A/RES/61/106, Annex, GAOR 61st Session Supp 49, 65Art.6(p. 484) legislation and policy where it is absent, such that recognizes the needs of disabled women, and applied in such a manner that protective measures are put in place and that they are made accessible.¹¹⁵ The strategies which the Committee has called for demonstrate the holistic nature of article 16, in that effective protection requires consideration of early detection and prevention, alongside support for recovery and legal remedies that include compensation and reparations, as well as accessible services should harm occur, such as shelters and counselling. This spans across the demands of every provision of article 16.

Paragraph 2 begins to expand the obligations on states parties and, in particular, makes it clear that the obligations to protect disabled people from exploitation, violence, and abuse should work to prevent such treatment. This obligation is framed as additional to the obligation to protect in paragraph 1, but separating the two is difficult, particularly given the expansive focus of the measures required in paragraph 1.

The similar wording of a protective obligation in article 19 CRC is also followed by a second paragraph that expands the obligation to provide adequate care and support, ‘as well as for other forms of prevention’. In General Comment No 13 on article 19 CRC, the CRC Committee notes that effective child protection should begin with ‘proactive prevention’;¹¹⁶ article 16 CRPD should be seen in the same way and paragraphs 1 and 2 should be seen as related. The importance of paragraph 2 is the way in which the prevention is outlined; rather than harm being prevented by disabled people being segregated from society, the obligation on states is to provide support and assistance to enable disabled people to remain safely within communities.

4.1  Preventative Measures, Ensuring ‘appropriate gender- and age-sensitive assistance and support’

As with article 16(1), 16(2) requires states to take ‘all appropriate measures’, this time in relation to preventing, rather than protecting, from all forms of exploitation, violence and abuse. While these two provisions are situated in separate paragraphs, it is notable in the concluding observations that it is difficult to ascribe the Committee’s recommendations to one paragraph or the other.¹¹⁷ Thus, while they are conceived as two separate obligations in the text of the Convention, the ‘preventative’ aspect of article 16(2) is often key to the Committee’s understanding of effective protection mechanisms.¹¹⁸

As discussed above with regards to paragraph one, the precise legislative, administrative, social, educational, and other measures required by article 16(1) are left open—and Page Id: 484ReferencesConvention on the Rights of Persons with Disabilities (United Nations [UN]) 2515 UNTS 3, UN Doc A/RES/61/106, Annex, GAOR 61st Session Supp 49, 65Art.16, (2)Convention on the Rights of the Child (United Nations [UN]) 1577 UNTS 3, CTS 1992/3, UN Doc A/RES/44/25, UNTS Reg No I-27531Part I, Art.19(p. 485) particularly in respect of the social and educational aspects their content is undefined, with little guidance from the travaux préparatoires. In contrast, paragraph 2 is more detailed, and forms of ‘appropriate measures’ are suggested. The ones specifically named are those that were discussed in the negotiations on the Convention—specifically forms of assistance and support for both disabled people and their families and caregivers, which may take the form of ‘the provision of information and education on how to avoid, recognize and report instances of exploitation, violence and abuse’.

This formulation of prevention is important, as it suggests a more modern approach to protecting disabled people from harm that works to empower them to safeguard themselves rather than remove them from a society that may present dangers to them. Indeed, the Committee has been critical of states where institutionalization has been the main remedy for abuse¹¹⁹ and has noted that institutionalization often brings with it a greater incidence of harm.¹²⁰ The focus on support and assistance is also in line with the wider relational framework seen elsewhere in the Convention, for example in article 12, which recognizes that disabled people may need support in exercising their rights, but that these needs do not diminish their ability to hold or claim rights as legal subjects.

4.2  ‘Including through the provision of information and education on how to avoid, recognize and report instances’

The Committee has made very little reference to the obligation for education for disabled people in article 16 in its concluding observations, and it was also a notable omission from General Comment No 4, which focused more on the use of punishment, and its disproportionate affect on disabled people—and particularly corporal punishment.¹²¹ The concluding observations of the Committee which do refer to education measures, as discussed below, recognize that educational measures around exploitation, violence, and abuse need to be made accessible to and tailored for disabled people, and there is a clear link to the requirements on accessible education in article 24, so it is unfortunate that the Committee did not make this link in the General Comment on article 24.

The main recommendations the Committee has made around the requirement for information and education have focused around the provision of accessible services, either in creating services specifically for disabled people, particularly disabled women, or making existing services accessible. In particular, they have called for accessible shelters and helplines.¹²² A notable exception is in relation to Ecuador, where it was noted that the high rate of teenage pregnancy and childbirth amongst disabled women was indicative of high levels of sexual abuse, particularly amongst women with intellectual disabilities. In its recommendations, the Committee urged that Ecuador ‘launch a training programme on the sexual and reproductive rights of persons with disabilities, targeted specifically at women with intellectual disabilities, their families and the professionals who provide Page Id: 485ReferencesConvention on the Rights of Persons with Disabilities (United Nations [UN]) 2515 UNTS 3, UN Doc A/RES/61/106, Annex, GAOR 61st Session Supp 49, 65Art.12Art.24(p. 486) services in various state institutions’.¹²³ The phrasing here emphasizes the need to make this assistance ‘gender- and age-sensitive’—in this particular instance making the education specifically tailored for and targeted at women with intellectual disabilities.

This recommendation is also an example of the difficulty in separating the obligations in paragraphs 1 and 2. Such education and training programmes would hopefully prevent abuse occurring in the future—but this is also a form of protection. In addition to the education for disabled people and families, there is a recommendation of training for professionals in order that they identify and detect instances of exploitation, violence and abuse and the same recommendation has been made to other states.¹²⁴ This form of prevention is not explicitly referenced in article 16(2), which refers only to ‘persons with disabilities and their families and caregivers’, but equally, it is not explicitly excluded, as the ‘assistance and support’ referred to in article 16(2) is only indicative of the types of appropriate measures that should be made available. Such obligations would fit just as easily within the more general requirements for educational measures in article 16(1), but the pertinent discussions during the Ad Hoc sessions demonstrate that education and training for all three groups were being considered and discussed together.

This clearly highlights the overlap between an obligation to protect and to prevent—but also suggests the way in which ‘protection’ is more broadly to be understood in article 16. Rather than removing disabled people from the dangers present in society, through the use of institutionalisation, the focus should be on developing a supportive environment in which they can take control themselves. As discussed in the travaux section, there was discussion around whether the rights in article 16 should apply to care givers and there was support for the need to recognize that ‘supportive environments’, particularly those provided by care workers, could provide a safe place for disabled people to disclose abuse.¹²⁵ Training for families, carers, and other professionals to provide this space and to recognize the signs of exploitation, violence, and abuse, was considered vitally important to a meaningful right in article 16. There was discussion as to whether ‘protection’ and ‘prevention’ should be maintained as separate provisions, or whether it was repetitive. Ultimately, separate provisions were left, in order to emphasize that the obligations in article 16 went beyond the ‘old paradigm’ of protection.

4.3  Ensure that Protection Services Are Age-, Gender-, and Disability-Sensitive

Paragraph 1 requires that states take measures to protect disabled people from exploitation, violence and abuse, and in particular the ‘gender-based aspects’. In paragraph 2 there is an obligation to ensure that the protective services that are provided to ensure the prevention of harm are ‘age-, gender- and disability-sensitive’. This is a wider reference, referring not to any particular type of harm, but rather to the accessibility of the services themselves. As has been noted previously, article 16 does not contain the phrase ‘equal basis with others’, but this does not necessarily negate the concept of reasonable Page Id: 486ReferencesConvention on the Rights of Persons with Disabilities (United Nations [UN]) 2515 UNTS 3, UN Doc A/RES/61/106, Annex, GAOR 61st Session Supp 49, 65Art.16, (1)(p. 487) accommodation and the adjustment of existing services to accommodate the specific needs of disabled people. A particular focus for the Committee on this issue has been the accessibility of information about protection from abuse, including shelters, alongside the physical accessibility of the shelters themselves and the capacity of those shelters to accommodate disabled people, particularly women and children.¹²⁶ Concerns have also been expressed about the accessibility to mechanisms for legal redress in Mongolia.¹²⁷

As with other aspects of article 16, it is not easy to separate the ‘protective services’ in the final sentence of paragraph 2, which must be ‘age-, gender- and disability-sensitive’, from the ‘appropriate forms of … assistance and support’ which must only be gender- and age- sensitive. Shelters and legal advice can be seen as ‘protective mechanisms’, but can also be places of assistance and support that enable reporting of exploitation, violence, and abuse, as well as places of education on how to avoid and recognize incidences. Some additional guidance on this matter can be found in the Committee’s interpretation of article 16 in its General Comment No 2 on article 9.¹²⁸ In considering the interaction between article 9 and article 16, the Committee stated that ‘safe houses, support services and procedures must all be accessible in order to provide effective and meaningful protection from violence, abuse and exploitation to persons with disabilities, especially women and children’.¹²⁹

Paragraph 3 concerns the monitoring of facilities and programmes and during the negotiation of the Convention such an obligation was considered extremely important. However, the interpretation of this obligation requires examination, given the scope of the obligation in article 16(1) to encompass protection both ‘within and outside the home’.

5.1  ‘All facilities and programmes’

Paragraph 3 also concerns the issue of prevention, and specifically focuses on the role of monitoring in this process. The scope of the duty in this paragraph is challenging, however, as the text of the Convention refers to ‘all facilities and programmes designed to serve persons with disabilities’. There is an obligation to monitor institutions within the remit of the Optional Protocol of the Convention Against Torture (OPCAT), but it is clear that the obligation in article 16 CRPD must stretch further than this, as the scope of the protective obligations set out in article 16(1) clearly extend beyond the institution in the wider public domain and into private residences. This raises several difficult questions for the implementation of article 16.

Paragraph 3 requires that ‘all facilities and programmes designed to serve persons with disabilities are effectively monitored by independent authorities’. However, the meaning of this phrase is difficult to define when set alongside the inclusion paradigm pursued by the Convention.¹³⁰ A move to greater independent community living means that disabled people will no longer use ‘facilities and programmes’ designed for them alone, but it seems unlikely that the intention of the Convention is to restrict protection and prevention of harm Page Id: 487ReferencesConvention on the Rights of Persons with Disabilities (United Nations [UN]) 2515 UNTS 3, UN Doc A/RES/61/106, Annex, GAOR 61st Session Supp 49, 65Art.9, (1)Art.16, (3)Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (United Nations [UN]) 2375 UNTS 237, UNTS Reg No A-24841, UN Doc A/RES/57/199, Annex(p. 488) to disability-specific facilities and programmes. Secondly, in a more integrated community where disabled people are living in private residences, should those private residences be considered ‘facilities’ or ‘programmes’ susceptible to monitoring? How should carers be regulated?

This issue was briefly discussed at the fifth session of the Ad Hoc Committee.¹³¹ The initial proposal had included a phrase limiting monitoring where disabled people ‘are placed together separate from others, live and access services’.¹³² This sentence was the focus of the discussion and the extent to which monitoring should extend beyond institutions. New Zealand observed in the discussions that the Working Group, in proposing the provision initially, had focused on situations where disabled people were most likely to experience violence and abuse, ie in institutions, while Canada called for a broader approach to monitoring.¹³³ New Zealand was concerned that this broadened the scope of article 12(4) (as it then was) too significantly, suggesting that disabled people should be monitored accessing general services such as banks or other financial services, and that this cannot be the intention of the article.¹³⁴

Thus far, the Committee has not given clear guidance on how this should be interpreted. Where the issue of monitoring has been addressed in concluding observations, the focus has been primarily on the fact that many states do not even have basic monitoring bodies, independent from government, at all, even with regards to institutions.¹³⁵ The comments in concluding observations with regard to paragraph 3 have, therefore, primarily urged states parties to set up independent monitoring bodies without further elaboration. For example, with regard to Mongolia the Committee recommended that it ‘appoint an independent authority to monitor and protect persons with disabilities from exploitation, violence and abuse in accordance with article 16(3) of the Convention’.¹³⁶

In three specific instances, the Committee has provided a greater indication of more specific action. With regard to Germany, the suggestion that an independent body(ies) be set up was accompanied with a requirement to ensure that complaints about incidences in institutions were handled by an independent body,¹³⁷ while in respect of Mexico a requirement that children’s shelters, as well as other residences for children, were monitored by an independent body.¹³⁸ These two recommendations make it clear that the monitoring required goes beyond traditional institutions, and that this extends to private residences, as was emphasized in the Committee’s recommendations to Italy. There, the Committee recommended ‘that the state party enact legislation, including monitoring mechanisms, to detect, prevent and combat violence within and outside the home of persons with disabilities’,¹³⁹ but little guidance was given as to how this obligation should be balanced against other requirements in the CRPD, particularly those in article 12.

Page Id: 488ReferencesConvention on the Rights of Persons with Disabilities (United Nations [UN]) 2515 UNTS 3, UN Doc A/RES/61/106, Annex, GAOR 61st Session Supp 49, 65Art.12(p. 489) While article 16 CRPD does not contain a provision whereby the rights within be afforded ‘on an equal basis with others’, it seems clear that the disproportionate monitoring of disabled people would be in danger of drifting back into an overly controlling protective framework which was restrictive of disabled people’s rights overall. As Laing has noted,¹⁴⁰ there appears to be an inherent tension in the understanding of article 16’s protective requirements, and in particular around monitoring—but the answer cannot be to over-protect disabled people. Other interpretations of state intervention with regard to article 16 have focused on its interaction with legal capacity,¹⁴¹ but the Committee itself did not consider this aspect when it examined the interaction between articles 12 and 16 in its General Comment No 1.

The interpretation of the provisions on legal capacity in article 12 have proven to be a contentious issue, but the interpretation of the Committee—as has been set out in detail elsewhere in this volume—is that an individual should be supported in their exercise of their legal capacity, and that substitute decision-making should be prohibited. In their General Comment No 1, the Committee considered the interaction with article 16 the alongside articles 15 (freedom from torture) and 17 (the right to personal integrity). Reflecting the dominating debate during the negotiation, the Committee’s concern was around the issue of involuntary medical treatment.¹⁴²

However, this narrow focus omits consideration of a wider area of conflict between the two rights. Article 12, and particularly the Committee’s interpretation of it, places significant emphasis on the ‘will and preference’ of the individual. However, with regards to the relationship between article 12 and 16, there remains a question as to what a state’s action should be where an individual appears to choose to remain in an exploitative, violent, or abusive relationship, or to choose an exploitative or abusive person to support their legal capacity? The obligations around monitoring in 16(3) raise questions around to what extent the supportive relationships around the exercise of legal capacity should be regulated by the state.

Arstein-Kerslake, in considering this question, states that central to the right to legal capacity is the state’s obligation to uphold choice, and this requires support to ensure that the individual is actually making a choice.¹⁴³ She notes that where there is concern around an exploitative relationship, the disabled person must be made aware of other options, including leaving the exploitative relationship and the existence of alternative living arrangements. However, should the person ultimately decide to remain, the state must withdraw from further interference and exist ‘without undue intrusion’.¹⁴⁴ Writing with Flynn, she makes a similar point during an examination of adult protection processes.¹⁴⁵ Together, they argue that the shortcoming of many such schemes is that they work to restrict the person experiencing the harm, and that, while state intervention into people’s lives can be countenanced, it must be done on a disability-neutral basis if help or support is refused. Keeling has made a slightly different point, arguing from the basis of empirical data that effective protection mechanisms under article 16 must look to article 12 and the role of legal capacity.¹⁴⁶ She argues that safeguarding mechanisms which disempower Page Id: 489ReferencesConvention on the Rights of Persons with Disabilities (United Nations [UN]) 2515 UNTS 3, UN Doc A/RES/61/106, Annex, GAOR 61st Session Supp 49, 65Art.15Art.16Art.17(p. 490) the individual do not work to prevent future harm; in order to be effective, protective mechanisms must work towards enhancing and supporting and individual’s legal capacity. General Comment No 1 has not dealt with this point in detail, and nor have adult protection frameworks been addressed from this perspective in the Concluding Observations available thus far. More detail in future concluding observations would be welcome, as would the development of a General Comment.

5.2  ‘Effectively monitored by independent authorities’

It is insufficient that monitoring mechanisms exist only on paper, but do not effectively prevent harm from occurring. Article 16(3) requires that monitoring must be effective at protecting disabled people and the Committee has been critical of states which, while possessing monitoring mechanisms in place, continue to have high rates of exploitation, violence, and abuse in institutions.¹⁴⁷ Additionally, monitoring must be undertaken by a body that retains independence from the state, as well as the institution at hand. This latter point has been particularly criticized by the Committee in terms of complaint mechanisms situated in institutions, where there has been no independent mechanism.¹⁴⁸

Paragraph 4 provides an important aspect to article 16 that shifts state obligations far beyond concepts of protection involving the segregation of disabled people from society. On the contrary, article 16(4) sets out detailed requirements for the response of states to the experience of exploitation, violence, and abuse. The focus of this obligation is around the recovery of victims, but also their reintegration into society.

6.1  Measures to Promote the Physical, Cognitive, and Psychological Recovery, Rehabilitation, and Social Integration

Where article 16 takes a significant departure from the right to be free from torture, cruel, or inhuman, or degrading treatment or punishment in article 15 is the obligation in paragraph 4 to promote the recovery, rehabilitation, and social reintegration of disabled people who have experienced exploitation, violence, and abuse. The obligation for rehabilitation is something found in other Conventions, including article 14 of the CAT, article 39 of the CRC, and article 6 of the Convention Against Transnational Organized Crime (CATOC), on the rehabilitation of victims of trafficking.¹⁴⁹ The Committee Against Torture explored what rehabilitation from torture required in General Comment No 3, noting that the aim should be to ‘restore, as far as possible, their independence, physical, mental, social and vocational ability; and full inclusion and participation in society’,¹⁵⁰ and that it should be a ‘holistic and include medical and psychological care as well as legal and social services’.¹⁵¹ The idea of rehabilitation is also elaborated on in the Page Id: 490ReferencesConvention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (United Nations [UN]) 1465 UNTS 85, UNTS Reg No I-24841, UN Doc A/RES/39/46Part I, Art.14Convention against Transnational Organized Crime (United Nations [UN]) 2225 UNTS 209, UN Doc A/RES/55/25, Annex I, UN Doc A/55/383, Annex I, S Treaty Doc 108-16Art.6Convention on the Rights of Persons with Disabilities (United Nations [UN]) 2515 UNTS 3, UN Doc A/RES/61/106, Annex, GAOR 61st Session Supp 49, 65Art.16, (4)Convention on the Rights of the Child (United Nations [UN]) 1577 UNTS 3, CTS 1992/3, UN Doc A/RES/44/25, UNTS Reg No I-27531Part I, Art.39Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime (United Nations [UN]) 2237 UNTS 319, UN Doc A/RES/55/25, Annex II, UN Doc A/55/383II Protection of Victims of Trafficking in Persons, Art.6, (3)(p. 491) provisions for victims of trafficking in the CATOC, where article 6(3) outlines measure for the ‘physical, psychological and social recovery of victims’ as including:

1. (a)  Appropriate housing;

2. (b)  Counselling and information, in particular as regards their legal rights, in a language that the victims of trafficking in persons can understand;

3. (c)  Medical, psychological and material assistance; and

4. (d)  Employment, educational and training opportunities.

The provision in article 16 was introduced at the Third Session of the Ad Hoc Committee, as part of the Working Group’s draft text of the Convention¹⁵² and was strongly endorsed by New Zealand, Serbia and Montenegro, the Philippines (who suggested the addition of ‘rehabilitation’), Trinidad and Tobago.¹⁵³ It is important that the positive obligations under article 16 extend to these aspects, as they themselves have the potential to perpetuate a cycle of harm. Domestic violence, for example, can generate feelings of low self-worth, which may result in the individual entering into further abusive and exploitative relationships. This approach to protection in article 16 further emphasizes that the obligation on states is within the ‘paradigm shift’; disabled people should be included within wider society rather than become marginalized.

In considering the measures which fall within this obligation, the Committee has thus far had a specific focus on two groups of people: children who have been exploited by criminal gangs to beg,¹⁵⁴ and disabled women and children that have been trafficked as sex workers.¹⁵⁵ In responding to these specific harms, the Committee has not been prescriptive of what shape rehabilitative measures should take, but has emphasized that the focus should be on social inclusiveness.¹⁵⁶ Thus, the support provided should focus on both healing the psychological and physical trauma that may have been experienced, but also working to reintegrate people into society, away from exploitation. In the context of trafficking, with regard to Paraguay, the Committee recommended the development of reception centres and alternative housing, which provide safe accommodation so that women cannot be re-trafficked, alongside providing a place where legal assistance and other support can be easily obtained.¹⁵⁷ There has been less prescription with regard to children that have been raised into a begging culture, but providing secure accommodation and access to food, alongside safety from their exploiters, and education as a means to exiting poverty would seem to be an obvious parallel.

Paragraph 5 sets out an obligation to ensure the identification, investigation, and prosecution of instances of exploitation, violence, and abuse. This paragraph reflects the fact that many instances of abuse and exploitation are not resolved for disabled people, with the action taken often resulting in the disabled person finding greater intervention in, and restrictions placed on, her life instead of the perpetrator being prosecuted.¹⁵⁸ The demands in article 16 to ensure that disabled people get the adequate support needed to understand when they have experienced exploitation, violence, and abuse and that their reports are taken seriously should be read alongside obligations in article 13 to provide adjustments in the justice system for disabled people.

7.1  Effective Legislation and Policies … to Ensure Instances are Identified, Investigated and, where Appropriate, Prosecuted

Paragraph 5 requires that both legislation and policies are put in place to ensure the identification and investigation of instances of exploitation, violence, and abuse. As with monitoring, these measures must also be effective—they cannot pay mere lip service. There are clear overlaps between this obligation and the obligation in article 16(3) to provide effective monitoring, but the obligation in paragraph 5 goes further. This obligation is not restricted to formal monitoring mechanisms, but extends to staff and carers who work with disabled people on a day-to-day basis; in order to ensure effectiveness, there must be adequate training for professionals to ensure that they are able to identify harm, as well as investigate suspicions or reports. The lack of training for professionals has been mentioned in a number of concluding observations. For example in relation to Gabon, recommendations were made to ensure that training was provided for ‘police offers, justice workers, health professional and other interlocutors so as to ensure protection from and prevention of exploitation and abuse of, and violence against persons with disabilities, including on effective reporting channels[ … ]’.¹⁵⁹ There has also been significant criticism of the lack of data or record of cases kept by states, as without knowing the scale of the problem, an adequate policy response cannot be designed.¹⁶⁰

The issue of prosecution has a discretionary element—‘where appropriate’—but it is clear that the issue of punishing exploitation, violence and abuse of disabled people is not taken sufficiently seriously. Such incidences of violence would generally be prosecuted if perpetrated again non-disabled people, and therefore in the interest of equal access to justice, the same standard should apply for disabled people. Gabon has been criticized for failing to take women’s complaints seriously and for showing a marked reluctance to prosecute such offences,¹⁶¹ and Ethiopia has also recently been criticized for its failure to make the criminal justice system accessible, and for failing to treat the evidence of disabled Page Id: 492ReferencesConvention on the Rights of Persons with Disabilities (United Nations [UN]) 2515 UNTS 3, UN Doc A/RES/61/106, Annex, GAOR 61st Session Supp 49, 65Art.13Art.16, (3)Art.16, (5)(p. 493) people as credible.¹⁶² Paraguay has been criticized for failing to properly investigate and prosecute criminal gangs who economically exploit disabled children,¹⁶³ and the Republic of Korea,¹⁶⁴ Moldova,¹⁶⁵ and Honduras¹⁶⁶ for a general failure to punish perpetrators and to provide reparations. The phrase ‘reparations’ is not explicitly included in the text of article 16, and was not discussed in the negotiations. In the context of victims of torture, inhuman cruel, or degrading treatment or punishment, article 14 CAT requires the compensation of the victim, which can include rehabilitation measures alongside monetary compensation. Equally, the CATOC requires measures for compensation in place in a number of articles.¹⁶⁷ If article 16 is understood to be linked closely to general rights prohibiting torture, then equally rights to compensation or reparation could also be seen as a natural addition to the interpretation of the right. Alternatively, perhaps it could be said that it simply follows what seems to be a general requirement for compensation or reparations in international human rights law—and indeed in many legal systems provisions around civil wrongs.

7.2  Including Women- and Children-Focused Legislation and Policies

The obligation in paragraph 5 requires that there are specific legislative and policy measures put in place for children and women. This reflects again the focus on these two groups as experiencing higher levels of harm, particularly of a sexual and economic nature. This obligation, therefore, requires the adoption of legislation and policies that specifically respond to the issues that these groups face—particularly domestic violence and economic exploitation, as is the case with child begging. Developing these policies requires knowledge of the extent and types of harms that these two groups face, and therefore the need to collect data is important here is also developing effective preventative frameworks.