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Conference on Autonomy and InclusionCopenhagen 7-8 June 2012

The rights of persons with disabilities to participate and be

included in community life

Mario Oetheimer

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“Even if I cannot speak, it doesn’t

mean I have nothing to say”

JAG client, Sweden

The fundamental rights of persons with

intellectual disabilities and persons with mental

health problems

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Two groups of individuals

Considered decision to include two distinct groups of individuals:

Persons with intellectual disabilities Persons with mental health

problems/psychosocial disabilities

Different groups, but often face similar reaction from society: discrimination, stigmatisation and social exclusion

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Key issues

Effective implementation of the CRPD Separation of legal capacity and right

to vote Fundamental rights upheld in

involuntary placement and involuntary treatment

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RIGHT TO POLITICAL PARTICIPATION

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CRPD

Article 29 of the United Nations Convention on the rights of persons with disabilities

States Parties shall guarantee to persons with disabilities political rights and the opportunity to enjoy them on an equal basis with others, and shall undertake to: (a) Ensure that persons with disabilities can effectively and fully participate in political and public life . . .: (iii) Guaranteeing the free expression of the will of persons with disabilities as electors and to this end, where necessary, at their request, allowing assistance in voting by a person of their own choice;

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FRA results:The participation spectrum

A. EXCLUSION: Denial to all people under partial and plenary guardianship, regardless of their actual, individual level of functional ability

B. LIMITED PARTICIPATION: Exclusion hinges on the degree of limitation of legal capacity or evaluation on case by case

C. PARTICIPATION: Persons with disabilities are allowed to vote and to be elected like all other citizens, legal capacity notwithstanding

Exclusion Participation

Limited Participation

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Clear interpretation by CRPD Committee

Council of Europe standards A challenge for the EU Member States

and for the European Union?• Right to vote at elections to the

European Parliament (Article 39 of the Charter)

• Right to vote at municipal elections (Article 40 of the Charter)

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INVOLUNTARY PLACEMENT AND INVOLUNTARY TREATMENT

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The scope of the report on involuntary placement and involuntary treatment Involuntary placement and involuntary

treatment of persons with mental health problems

• Civil compulsory measures• Persons with full legal capacity• Exclusion of living conditions• No assessment of implementation

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International and European treaties and standards

UN Convention on the Rights of Persons with Disabilities

European Convention on Human Rights

Oviedo Convention

ECtHR case law

Council of Europe Recommendation Rec(2004)10

Committee for the Prevention of Torture Standards

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The adoption of the CRPD in 2006 gave momentum to the rights-based approach to disability

Deprivation of liberty delinked from disability

Challenges to implementation

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Criteria for involuntary placement and treatment

Great variety of practices among EU Member States: All require the presence of a mental health problem together with:

significant risk of serious harm therapeutic purpose significant risk of serious harm and

therapeutic purpose

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Opinion of the person concernedOpinion of the person concerned

Involuntary placement is possible only if the opinion of the person concerned has been taken into consideration

Among EU Member States, opinion is often sought, but not clear how far it is taken into account when deciding on involuntary placement

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Personal accounts Overwhelmingly negative

experiences of involuntary placement or treatment

Trauma and fear recurrent themes

Few attempts to challenge the lawfulness of compulsory measures

More positive experiences when choice and control over treatment

“Being detained in a hospital and thinking that you can benefit from legal assistance is absolutely utopian.” (Man, 44, Romania)

“It was extraordinarily violent there. I was totally destroyed and shocked: they didn’t leave me a choice, and they didn’t explain anything to me. I would describe it as an arrest” (Woman, 65, France)

“No one said anything to me about where I was or why I was there, I did not know a thing.” (Woman, 47, Latvia)

“I felt at their mercy.” (Man, 66, Germany)

“In the hospital I was never forced to do anything.” (Greece)

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Next steps at EU level?

Greater focus on involuntary placement and involuntary treatment as a discrimination issue

Put the issue back on the agenda–Update the 2002 report

Ensure participation of persons with disabilities

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fra.europa.eu

For more information:Mario.Oetheimer@fra.europa.

eu disability@fra.europa.eu