Ireland’s Ratification of the CRPD: What Does It Really Mean?

by Donna McNamara, PhD candidate at the School of Law and Government, Dublin City University.
CPRD map

A 2016 map showing the status of CRPD ratification

 

On Wednesday, the 7th of March 2018, the Government finally passed a motion to ratify the UN Convention on the Rights of Persons with Disabilities– eleven years since Ireland signed the Convention.[1] This marks a historic day in the fight for disability rights and is the culmination of a lengthy campaigning and advocacy among the disability community. Nevertheless, the celebratory mood is somewhat tinged with uncertainty.

As of now, it is unclear what reservations and declarations will be made on the rights to legal capacity, deprivation of liberty and employment.[2] It is also unclear if (or when) Ireland will ratify the Optional Protocol to the Convention, a separate instrument which would allow for individuals and groups of individuals to take a complaint to the UN Committee on the Rights of Persons with Disabilities in the case of an alleged violation of their rights. So, while the Government’s commitment to the rights of persons with disabilities is worth celebrating, it is also important to note that there is still a long way to go before we achieve full equality for people with disabilities in Ireland.

What is the Convention on the Rights of Persons with Disabilities?

The UN Convention on the Rights of Persons with Disabilities and its Optional Protocol were adopted by the UN General Assembly of the United Nations in 2006.[3] The first human rights treaty of the twenty-first century, it quickly gained international support to become one of the fastest ratified treaties in UN history. The Convention adopts a broad definition of persons with disabilities, to include:

[T]hose who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.[4]

The Convention is the product of an international disability rights movement which advocated for the full and effective participation and inclusion of persons with disabilities in international human rights laws. During the treaty negotiations, people with disabilities and their representative organisations and NGO’s were invited to participate directly in the debates and treaty discussions. The motto ‘Nothing about us, without us!’ featured predominantly throughout these negotiations and since become synonymous with the spirit of the Convention – no longer is it acceptable for persons with disabilities to be excluded in decision-making in matters relating to them.

The rights contained within the Convention are wide-ranging and include the rights to non-discrimination, equal recognition before the law, access to justice, a right to liberty, a freedom from torture and other cruel and degrading treatment, among others.[5] Article 3 also sets out a list of guiding principles which are intended to guide the interpretation of the Convention, and include: respect for inherent dignity and autonomy, non-discrimination, full and effective participation, respect for diversity, equality of opportunity and equality between men and women, accessibility and respect for the evolving capacities of children with disabilities.

 

Ireland’s Progress So Far

Over the past eleven years, the reason for Ireland’s persistent delays in ratifying the Convention was attributed to a number of legislative changes that needed to be addressed to ensure Ireland’s compliance. In 2016, the Disability (Miscellaneous Provisions) Bill was brought forward ‘to remove the statutory barriers to ratification of the Convention.’[6] While this Bill was heralded as one of the final steps towards ratification, it has yet to progress to the Committee Stage in the Dáil. There are also serious concerns about the deprivation of liberty safeguards that are due to be introduced at committee stage – thereby reducing the opportunity for engagement with persons who are affected by this legislation to participate in the debates.[7]

Further clarity is also necessary in regard to how the right to liberty under Article 14 of the Convention will be protected. Article 14 provides an absolute prohibition on the deprivation of liberty on the basis of disability and is one of the core human rights protections outlined in the Convention. The lack of transparency in this area is most worrying when one considers the numbers of people with disabilities living in social care homes unnecessarily, including young people.[8] As of 2017, there were more than 1,200 people under the age of 65 (most with disabilities), living in nursing homes.[9] It is imperative that the 2016 Bill introduces safeguards to address these issues, in line with Article 14, in order to ensure that people with disabilities are not deprived of their liberty unlawfully.

The Assisted Decision-Making (Capacity) Act 2015 has also experienced delays, with a number of key sections yet to be commenced. The Act, which was signed by the President on the 30th December 2015, provides for the abolition of the existing Ward of Court regime and introduced a new Decision Support Service within the Mental Health Commission to support those persons in decision-making. This is in line with Article 12 of the Convention, which provides that all persons with disabilities have the right to equal recognition as persons before the law, and where necessary, should be supported to make decisions for themselves without resorting to substitute decision-making. States Parties are therefore required to put in place support structures to enable people to make their own decisions and abolish existing substitute decision-making regimes (including guardianship or in the Irish context, Wardship).[10]

One of the main aims of the 2015 Act was to repeal the existing Lunacy Regulation (Ireland) Act 1871, which established Wardship and provides for a comprehensive framework of substitute decision-making in Irish law. Section 15 of this Act permits any individual to make an application to the Office of the Wards of Court, where they believe a person is of “unsound mind.”[11] If an individual is admitted to Wardship, they are thereby denied the right to exercise personal decision-making, which may include decisions about where to live, the ability to consent to medical treatment, entering and concluding contracts, and decisions to marry or have a relationship. These decisions are taken over by the President of the High Court, who may also appoint a Committee of the Ward, to make decisions which are in the Ward’s “best interests.” Despite the introduction of the 2015 Act and the growing consensus that similar regimes are contrary to the CRPD, the numbers of applications for Wardship continue to rise.[12] It is estimated that 300 people are made Wards of Court every year in Ireland; of this number the large majority of cases involve dementia or age-related illnesses.[13]

Once the 2015 Act is commenced, it will provide for the review of all existing Wards of Court within three years of the date of the Act’s commencement, introduces new support measures for decision-making and facilitates the making of Advance Healthcare Directives. Although the Act was introduced to meet Ireland’s obligations under the Convention, it is apparent that ‘it clearly does not comply with the requirements of’ Article 12.[14] Of concern, the 2015 Act retains a form of substituted decision-making through the use of decision-making representatives, in such cases where it is believed that the person lacks all capacity and decisions need to be made on their behalf.[15] While it is unclear at the moment what exact reservations or declarations will be made by the Government in respect of Article 12, it is clear that the current 2015 Act is non-compliant with the UN Committee’s interpretation of Article 12 and this will need to be addressed going forward.

Going Forward

It is particularly disappointing that the Government did not announce plans to ratify the Optional Protocol alongside the Convention, which would allow for the Committee on the Rights of Persons with Disabilities to hear claims from or on behalf of individuals in respect of a violation of their rights.[16] A failure to ratify the Optional Protocol would have knock-on effects in respect of Article 13, on the right of access to justice, which is integral to the rule of law and includes the right to have ‘effective access to the systems, procedures, information, and locations used in the administration of justice.’[17] A refusal to ratify the Optional Protocol would inherently limit the effectiveness of the Convention and calls into question Ireland’s commitment towards advancing the rights of persons with disabilities.

 Ireland’s long overdue ratification of the UN Convention on the Rights of Persons with Disabilities should be celebrated for the longstanding commitment and perseverance of the disability rights community. But, the journey has only just begun – and it must look beyond legislative changes. It demands a full reconsideration of the way we operate as a society and breaking down all existing barriers, including barriers to health care, education, employment, public transportation and so forth.

As part of this, we also need to raise awareness throughout all sectors of society in order to combat stereotypes relating to persons with disabilities and promote awareness of their rights, dignity and capabilities.[18] Sufficient resources are required to support civil society organisations to continue their work in this area, in the spirit of the ‘Nothing about us, without us’ movement. Article 33(3) of the Convention requires that civil society organisations, and in particular persons with disabilities and their representative organisations, are involved in the monitoring process.

Together, we must commit to the objectives of the Convention, which is to ‘promote, protect and ensure’ the rights of persons with disabilities as we go forward and continue to advocate for full implementation of the Convention.

References:

[1] See the transcript of the Dáil debate here: https://www.kildarestreet.com/debates/?id=2018-03-07a.457&s=uncrpd#g498

[2] See the Governments’ Roadmap to Ratification of the United Nations Convention on the Rights of Persons with Disabilities (UN CRPD), available here: http://www.justice.ie/en/JELR/Roadmap%20to%20Ratification%20of%20CRPD.pdf/Files/Roadmap%20to%20Ratification%20of%20CRPD.pdf

[3] The CRPD and the CRPD Optional Protocol were adopted during the 61st Session of the General Assembly: see GA Resolution 61/611, 13 December 2006

[4] UN Convention on the Rights of Persons with Disabilities, Article 1.

[5] UN Convention on the Rights of Persons with Disabilities , Article 5 (non-discrimination), Article 10 (right to life), Article 12 (equal recognition before the law), Article 13 (Access to Justice), Article 14 (Liberty and security of the person), Article 15 (Freedom from torture or cruel, inhuman or degrading treatment or punishment).

[6] Statement by Finian McGrath TD, Minister of State with Special Responsibility for Disability Issues, 31 January 2017.  Available here: http://www.justice.ie/en/JELR/Pages/SP17000029

[7] See Inclusion Ireland, Briefing Note: Disability (Miscellaneous Provisions) Bill 2016 (January 2017) available here: http://www.inclusionireland.ie/sites/default/files/attach/basic-page/1110/inclusion-ireland-briefing-note-disability-miscellaneous-provisions-bill-2016.pdf

[8] Only 4% of persons with intellectual disability live in an independent setting: see Inclusion Ireland, Deinstitutionalisation in Ireland; a failure to act (Inclusion Ireland, 2018).

[9] RTE, ‘More than 1,200 people under 65 living in nursing homes for the elderly’ (8 August 2017) RTE Available: https://www.rte.ie/news/2017/0808/895907-disabilities-nursing-homes/ l

[10] Committee on the Rights of Persons with Disabilities, ‘Article 12: Equal recognition before the law’ (United Nations 2014, General Comment No. 1.) para 7.

[11] The Act states that application can be made concerning an individual who is of unsound mind and is incapable of managing their property. When assessing the application, the court must be satisfied that the person and/or their property must be in need of protection or where there is some benefit to the proposed individual in being admitted to wardship.

[12] In 2016, 311 people were made wards, up from 237 in 2015. See Mary Carolan, ‘Ward of court system does not protect vulnerable adults – HSE’ (The Irish Times, 16th January 2018) Available: https://www.irishtimes.com/news/crime-and-law/ward-of-court-system-does-not-protect-vulnerable-adults-hse-1.3356303

[13] Courts Service, ‘Annual Report 2016’ (2016) Available here: http://www.courts.ie/courts.ie/library3.nsf/pagecurrent/AC7C2772ABD0E1F880257FC0003D294C?opendocument&l=en&p=155, 57

[14] Charles O’Mahony and Catriona Moloney, ‘The Impact of International Human Rights Law on Irish Mental Health and Mental Capacity Law Reform’ (2017) 23(1) Medico-Legal Journal of Ireland 24-30, p. 27.

[15] Assisted Decision-Making (Capacity) Act 2015, Section 38

[16] Optional Protocol to the Convention on the Rights of Persons with Disabilities, Article 1

[17] Janet Lord, Kathy Guernsey, Joelle Balfe, Valerie Karr and Nancy Flowers, eds, Human Rights. Yes! Action and Advocacy on the Rights of Persons with Disabilities (Minneapolis: Human Rights Resource Center, 2009), Chapter 12, para. 12.1.

[18] CRPD, Article 8

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