40/54 Rights of persons with disabilities - Report of the Special Rapporteur on the rights of persons with disabilities
Document Type: Final Report
Date: 2019 Jan
Session: 40th Regular Session (2019 Feb)
Agenda Item: Item3: Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development
GE.19-00440(E)
Human Rights Council Fortieth session
25 February–22 March 2019
Agenda item 3
Promotion and protection of all human rights, civil,
political, economic, social and cultural rights,
including the right to development
Rights of persons with disabilities
Report of the Special Rapporteur on the rights of persons with
disabilities
Summary
In her report, the Special Rapporteur on the rights of persons with disabilities
provides an overview of the activities undertaken in 2018 and a thematic study on
disability-specific forms of deprivation of liberty, in the light of the standards set forth in
the Convention on the Rights of Persons with Disabilities. The report reviews disability-
specific forms of detention, their underlying causes and adverse consequences, and
proposes alternative rights-based models. The report contains recommendations to assist
States to develop and implement reforms to end deprivation of liberty based on disability.
These include the abolition of laws and regulations allowing for deprivation of liberty on
the basis of disability, the implementation of deinstitutionalization policies, and the conduct
of awareness-raising campaigns.
United Nations A/HRC/40/54
Contents
Page
I. Introduction ................................................................................................................................... 3
II. Activities of the Special Rapporteur ............................................................................................. 3
A. Country visits ........................................................................................................................ 3
B. Engagement with stakeholders ............................................................................................. 3
C. Communications ................................................................................................................... 4
III. Deprivation of liberty of persons with disabilities ........................................................................ 4
IV. Underlying causes of disability-specific forms of deprivation of liberty ...................................... 7
V. Right to liberty and security of persons with disabilities .............................................................. 10
A. Universal recognition of the right to personal liberty ........................................................... 10
B. Normative content of article 14 of the Convention ............................................................... 11
C. Impact of the Convention on international and regional standards ....................................... 13
VI. Ending deprivation of liberty on the basis of disability ................................................................. 15
A. Law reform ........................................................................................................................... 15
B. Deinstitutionalization ............................................................................................................ 15
C. Ending coercion in mental health ......................................................................................... 16
D. Access to justice ................................................................................................................... 16
E. Community support .............................................................................................................. 17
F. Participation .......................................................................................................................... 17
G. Capacity-building and awareness-raising ............................................................................. 18
H. Resource mobilization .......................................................................................................... 18
VII. Conclusions and recommendations ............................................................................................... 18
I. Introduction
1. The Special Rapporteur on the rights of persons with disabilities, Catalina
Devandas-Aguilar, submits the present report to the Human Rights Council pursuant to
resolution 35/6. It contains a description of the activities she carried out in 2018 and a
thematic study on disability-specific forms of deprivation of liberty. The study aims to
provide guidance to States on how to guarantee the right to liberty and security of persons
with disabilities, paying particular attention to the process of ending deprivation of liberty
based on impairment.
2. In preparing the study, the Special Rapporteur commissioned two studies 1 and
analysed the responses to a questionnaire sent to Member States, national human rights
institutions, agencies of the United Nations system, civil society organizations and persons
with disabilities and their representative organizations. She received 40 responses.2
II. Activities of the Special Rapporteur
A. Country visits
3. In 2018, the Special Rapporteur visited Kuwait from 26 November to 5 December
(report to be presented at the forty-third session of the Council). She thanks the
Government of Kuwait for its cooperation prior to, during and after the visit.
4. The Special Rapporteur has agreed to undertake visits to Botswana, Canada, China
and Norway. The Special Rapporteur has requested invitations to visit Benin, Cambodia, El
Salvador and Viet Nam, and notes with appreciation the invitations to visit Algeria, Egypt,
and the United Arab Emirates.
B. Engagement with stakeholders
5. During the year, the Special Rapporteur participated in numerous conferences and
expert meetings, including the fifty-sixth session of the Commission for Social
Development; the annual interactive debate on the rights of persons with disabilities at the
Human Rights Council; the European expert and stakeholder meeting to provide inputs for
the ninth session of the Open-ended Working Group on Ageing; the Human Rights
Council’s consultation on human rights and mental health; and the eleventh session of the
Conference of States Parties to the Convention on the Rights of Persons with Disabilities.
She also co-organized expert consultations on the right to health, the role of notaries and
the role of the judiciary in the implementation of the Convention jointly with other United
Nations experts, agencies, international civil society organizations, organizations of persons
with disabilities and academia.
6. She continued actively promoting a system-wide approach to include the rights of
persons with disabilities across the United Nations system, in coordination with the
Executive Office of the Secretary-General and the Inter-Agency Support Group on the
Convention on the Rights of Persons with Disabilities. As part of this effort, she conducted
a baseline study that will serve as the basis for the design of the United Nations system-
wide approach to disability inclusion.
7. As mandated by the General Assembly, she engaged with the United Nations
Statistical Division, the Inter-Agency and Expert Group on Sustainable Development Goal
1 P. Gooding and others, Alternatives to Coercion in Mental Health Settings: A Literature Review
(University of Melbourne, 2018); and M. Gómez-Carrillo, E. Flynn and M. Pinilla, Global Study on
Disability-Specific Forms of Deprivation of liberty (National University of Ireland Galway,
forthcoming).
2 See www.ohchr.org/EN/Issues/Disability/SRDisabilities/Pages/LibertyAndSecurity.aspx.
Indicators and several United Nations agencies to advocate for the collection and
disaggregation of data on persons with disabilities.
8. On 6 March, the Special Rapporteur presented her annual report to the Human
Rights Council on legal capacity and supported decision-making (A/HRC/37/56). On 22
October, she presented her annual report to the General Assembly on the right to health of
persons with disabilities (A/73/161). Both reports are available in accessible formats.3
9. The Special Rapporteur continued to collaborate closely with the special procedures
system, with treaty bodies and with other United Nations experts and agencies, including
the International Labour Organization, the Office of the United Nations High
Commissioner for Human Rights, the United Nations Population Fund, the World Health
Organization and the United Nations Partnership to Promote the Rights of Persons with
Disabilities.
10. The Special Rapporteur also engaged with several stakeholders, such as national
human rights institutions, representative organizations of persons with disabilities, other
non-governmental organizations, universities and the diplomatic community.
C. Communications
11. Summaries of communications sent and replies received during the period covered
by the present report are available in the communications reports of special procedures (see
A/HRC/37/80, A/HRC/38/54 and A/HRC/39/27).
III. Deprivation of liberty of persons with disabilities
12. Deprivation of liberty of persons with disabilities is a major global human rights
concern. Although there is no comprehensive data on the number of persons with
disabilities deprived of their liberty, available statistics and administrative information from
a series of countries demonstrate that persons with disabilities are systemically incarcerated,
imprisoned, detained or otherwise physically restricted across the globe, regardless of the
economic situation of the country or its legal tradition.
13. Persons with disabilities are significantly overrepresented in mainstream settings of
deprivation of liberty, such as prisons and immigration detention centres. While it is
estimated that persons with disabilities represent 15 per cent of the population, in many
countries the proportion of persons with disabilities in prisons represents as many as 50 per
cent of prisoners.4 Similarly, it has been well established that children with disabilities are
overrepresented in juvenile detention facilities and residential institutions for children, such
as orphanages, social care settings and small-group homes.5
14. Furthermore, persons with disabilities extensively experience unique, disability-
specific forms of deprivation of liberty. A deprivation of liberty is disability-specific if
there are laws, regulations and/or practices in place that provide for or permit such a
deprivation based on a perceived or actual impairment; or where specific places of
detention, designed solely or primarily for persons with disabilities, exist. Common forms
of disability-specific deprivation of liberty include involuntary hospitalization in mental
health facilities; placement into institutions; detention as a result of diversion from the
criminal justice system; forced treatment in “prayer camps”; and home confinement. All of
them share common characteristics, rationales and justifications that stem from the medical
model of disability.
3 See www.ohchr.org/en/issues/disability/srdisabilities/pages/reports.aspx.
4 J. Bronson, L. Maruschak and M. Berzofsky, “Disabilities among prison and jail inmates, 2011–12,
special report” (United States of America, Department of Justice, 2015); and Australia, Australian
Institute of Health and Welfare, The Health of Australia’s Prisoners (Canberra, 2015).
5 G. Mulheir (2012), “Deinstitutionalisation – a human rights priority for children with disabilities”,
Equal Rights Review, vol. 9, pp. 117–137; and C.A. Mallett (2014), “The ‘learning disabilities to
juvenile detention’ pipeline: a case study”, Children & Schools, vol. 36, No. 3, pp. 147–154.
15. Involuntary commitment to mental health facilities for short or long periods of time
is the most recognized form of deprivation of liberty on the basis of impairment.
Unfortunately, such acknowledgement has not resulted in its abolition, but instead has led
to the enactment of legislation setting out criteria for the detention and procedural
safeguards. Indeed, a majority of countries regulate involuntary commitment through
mental health laws. In 2017, 111 States reported having a stand-alone law on mental
health.6 In addition to the threshold criterion of being diagnosed with a “mental illness” or
“mental disorder”, common criteria include alleged risk to oneself or others and/or alleged
need for care and treatment, as determined by medical professionals. In most jurisdictions,
involuntary commitment leads to forced medication or other interventions.
16. Involuntary commitment is commonly purported to be a last-resort exception, but
evidence shows that this is not the case. Despite the overall reduction of inpatient beds in
mental health facilities globally, compulsory admission rates seem to be rising across
regions, particularly in high-income countries. For example, a significant increase is
reported in several European countries.7 Involuntary admissions are also increasing in many
countries from the Americas, the Middle East and East Asia.8 Even when admissions are
formally voluntary, in most countries “acute inpatient psychiatric wards” are locked and
individuals cannot leave the facilities at will. Moreover, voluntary admissions may not truly
reflect the individual’s free and informed consent as they may be expressed under the threat
of involuntary commitment. Long-term hospitalization of 12 months or longer is still
prevalent in some countries.9
17. Institutionalization is another widespread form of deprivation of liberty targeting
persons with disabilities. The need for “specialized care” is often the justification for this
type of placement. A major study that included 25 European countries estimated nearly 1.2
million persons with disabilities are living in institutions, most of them without their
consent and without opportunities to challenge their placement.10 Social care institutions for
persons with disabilities are also still prevalent in many countries of Africa, Asia and Latin
America. Where public institutions do not exist, charity-run and traditional or religious
centres operate. For example, “prayer camps” led by traditional and faith healers are
common in a number of African countries. In such centres, persons with disabilities
frequently live in extremely unsanitary conditions, often shacked or secluded, under the
complete discretion of a “faith healer”.11
18. Although institutionalized settings differ in size, name and set-up, they share certain
defining elements. Among these are: isolation and segregation from independent life within
the community; lack of control over day-to-day decisions; lack of choice over whom to live
with; daily schedule and routine irrespective of personal will and preferences; identical
activities in the same place for a group of persons under a certain authority; a paternalistic
approach in service provision; supervision of living arrangements; obligatory sharing of
assistants with others and no or limited influence over whom one has to accept assistance
from; and usually also a disproportion in the number of persons with disabilities living in
6 World Health Organization, Mental Health Atlas 2017 (2018), p. 18.
7 A. Turnpenny and others, Mapping and Understanding Exclusion: Institutional, Coercive and
Community-based Services and Practices across Europe (Mental Health Europe and University of
Kent, 2017).
8 M. Lebenbaum and others, “Prevalence and predictors of involuntary psychiatric hospital admissions
in Ontario, Canada: a population-based linked administrative database study”, British Journal of
Psychiatry Open, vol. 4, No. 2 (2018), pp. 31–38; J.A. Bustamante Donoso and A. Cavieres
Fernández, “Internación psiquiátrica involuntaria. Antecedentes, reflexiones y desafíos”, Revista
Médica de Chile, vol. 146 (2018), pp. 511–517; A. Bauer and others, “Trends in involuntary
psychiatric hospitalization in Israel 1991–2000”, International Journal of Law and Psychiatry, vol. 30,
No. 1 (2007), pp. 60–70; and A. Kim (2017), “Why do psychiatric patients in Korea stay longer in
hospital?”, International Journal of Mental Health Systems, vol. 11, No. 2.
9 Turnpenny and others, Mapping and Understanding Exclusion, p. 41.
10 J. Mansell and others, Deinstutionalisation and Community Living – Outcomes and Costs: Report of a
European Study, Volume 2: Main Report (Canterbury, University of Kent, 2007).
11 Human Rights Watch, “‘Like a death sentence’: abuses against persons with mental disabilities in
Ghana”, 2 October 2012.
the same environment. 12 To the extent that persons with disabilities are placed in
institutions without their free and informed consent or are not free to leave, they are
deprived of their liberty.
19. Children are particularly vulnerable to institutionalization on the basis of impairment.
Many jurisdictions permit the forced removal of children with disabilities from their
families and their placement in institutions, on the basis of the disabilities of the children
and/or parents or guardians. As a result, millions of children with disabilities are confined
to institutions, isolated and segregated from their communities.13 In these institutions, they
are routinely locked, forced to take medication and often exposed to torture, abuse and
neglect. The detrimental effects on child development of the placement of a child in any
residential institution, even in small residential homes or “family-like” institutions, have
been vastly demonstrated.14 Any placement of children in a residential setting outside a
family must be considered placement in an institution and subject to the protections against
deprivation of liberty.
20. Deprivation of liberty as a result of diversion from the criminal justice system is also
a common practice across jurisdictions (A/HRC/37/25). When persons with intellectual or
psychosocial disabilities have been deemed unfit to stand trial, or declared not responsible
for their criminally relevant actions, they are usually diverted to a forensic facility or civil
institutions. Frequently, in these facilities, they will have less access to procedural
guarantees than others in the criminal justice system and be subjected to forced
interventions, solitary confinement and restraint. In such facilities, they are also subject to
stricter regimes, and have less access to recreational, educational and health services than
those available in mainstream prisons, as well as fewer procedural guarantees. The criterion
of “dangerousness” is usually used to assess the need for imposition of these security
measures. Police and social services may also act as diversion agents and are in many cases
entitled to initiate involuntary hospitalization.
21. In many contexts, despite the absence or limited use of institutions and involuntary
hospitalization, many persons with disabilities remain deprived of liberty in their
communities. For example, the practice of shackling persons with psychosocial disabilities
has been reported in a number of countries.15 In such instances, persons with disabilities are
restrained by families and traditional and religious healers using chains or ropes and/or
locked up in a confined space, such as a room, shed or cage. In many cases, they are left
outdoors naked for days or even years. These practices are usually the result of deeply
rooted stigma and stereotypes, but also a lack of community-based support services.
22. Deprivation of liberty of persons with disabilities at home is not a practice limited to
low-income settings. In most parts of the world, many children with disabilities are
systematically locked up at home, with little or no interaction with the community.16 Many
adults with disabilities living in supported housing are also in practice deprived of their
liberty, as they are not free to leave the house. Similarly, older persons with dementia are
frequently impeded from leaving their own homes purportedly for their own safety.17
12 General comment No. 5 (2017) on living independently and being included in the community.
13 United Nations Children’s Fund, The State of the World’s Children 2013, Children with Disabilities
(New York, May 2013), pp. 46–47.
14 M. Dozier and others, “Consensus statement on group care for children and adolescents: a statement
of policy of the American Orthopsychiatric Association”, American Journal of Orthopsychiatry, vol.
84, No. 3 (2014), pp. 219–225; A.E. Berens and C.A. Nelson, “The science of early adversity: is there
a role for large institutions in the care of vulnerable children?”, Lancet, vol. 386, No. 9991 (2015), pp.
388–398; and K. Maclean, “The impact of institutionalization on child development”, Development
and Psychopathology, vol. 15, No. 4 (2003), pp. 853–884.
15 Human Rights Watch, “Living in hell: abuses against people with psychosocial disabilities in
Indonesia”, 20 March 2016.
16 F. Ellery, G. Lansdown and C. Csáky, “Out from the shadows: sexual violence against children with
disabilities” (Save the Children and Handicap International, 2011), p. 14.
17 J. Askham and others, “Care at home for people with dementia: as in a total institution?”, Ageing &
Society, vol. 27, No. 1 (2007), pp. 3–24.
23. While disability-specific forms of deprivation of liberty are particularly prevalent
among persons with intellectual or psychosocial disabilities, they affect the whole diversity
of persons with disabilities. In some countries, deaf and blind children continue to be
institutionalized for no reason other than access to education. Persons with cerebral palsy
are regularly placed into institutions for the purpose of “treatment” and “rehabilitation”.
Persons with albinism are sometimes de facto deprived of their liberty in sheltered homes
and protection centres. Persons affected by leprosy were sent for life to leprosariums.
24. Persons with disabilities deprived of their liberty are invariably placed into an
extremely vulnerable position. They are at serious risk of sexual and physical violence,
sterilization and human trafficking. They also experience a higher risk of being subjected to
torture and inhuman and degrading treatment, including forced medication and electroshock,
restraints and solitary confinement. They are even denied medical care and left to die.18
Moreover, persons with disabilities deprived of their liberty are often formally stripped of
their legal capacity, without opportunities to challenge the deprivation of liberty, and in the
long run invisible and forgotten by the wider community. Indeed, due to the mistaken belief
that those practices are benevolent and well intentioned and do not constitute deprivation of
liberty, the situation of persons with disabilities deprived of their liberty is hardly
monitored by national preventive mechanisms or national human rights institutions.
IV. Underlying causes of disability-specific forms of deprivation of liberty
25. The causes of disability-specific forms of deprivation of liberty are universally
misunderstood. While most people believe that triggers are related to the impairment, at the
core the underlying causes are largely social.
26. Stigma often lies at the root of the various forms of deprivation of liberty
experienced by persons with disabilities. In most countries, they are extremely stigmatized
as a result of widespread misconceptions. For example, there is a predominant view that
some persons with disabilities are unable to live in the community, as they need
“specialized care” provided in institutions. Cultural or religious beliefs may also feed
stigma. The perception that persons with disabilities are possessed by evil spirits, or that
impairments are the result of sin or witchcraft, make families feel fearful and/or ashamed,
prompting the social rejection and segregation of persons with disabilities. Some people
also believe that impairments are contagious and therefore persons with disabilities should
be separated from society.
27. A central aspect of the prejudice against persons with psychosocial disabilities is the
baseless belief that they are prone to violence. This assumption has proven to be wrong, in
fact, evidence shows that they are actually more likely to be victims of violence.19 However,
the stereotype of dangerousness has significantly increased over the last decades, fuelled by
negative media coverage that emphasizes a psychiatric history of a perpetrator or, failing
that, speculates about an “untreated” diagnosis.20 Moreover, it negatively impacts on how
service providers and the general public react in situations involving persons with
psychosocial disabilities, leading to social distance, discriminatory behaviour and recourse
to coercive practices.21
28. Furthermore, there is evidence that mental health professionals hold negative
conceptions about the dangerousness of people labelled with a diagnosis of schizophrenia,
18 Disability Rights International, Left behind: the exclusion of children and adults with disabilities from
reform and rights protection in the Republic of Georgia (2013).
19 S. Desmarais, “Community violence perpetration and victimization among adults with mental
illnesses”, American Journal of Public Health, vol. 104, No. 12 (2014), pp. 2,342–2,349.
20 J.P. Stuber and others, “Conceptions of mental illness: attitudes of mental health professionals and the
general public”, Psychiatric Services, vol. 65, No. 4 (2014), pp. 490–497.
21 K. McAleenan, “Perceptions of mental illness and mental health policy”, Psychology Honors Papers,
No. 34 (2013), available at http://digitalcommons.conncoll.edu/psychhp/34.
which in turn serves to justify more restrictive policies in psychiatric facilities.22 Similarly,
in many countries health-care and social care professionals encourage parents to place their
children with disabilities in institutions under the false claim that they will receive better
care than at home (see A/HRC/37/56/Add.2). Child protection authorities may also separate
children from their families based on real or perceived disabilities of the parents without
offering them the support they may need to keep their children.
29. Sometimes the lack of appropriate community-based support is behind an alleged
need for treatment and care, which is used to justify involuntary commitment in mental
health facilities or other forms of institutionalization. Regardless of a country’s income
level, all persons with disabilities face significant barriers in accessing health, education,
employment opportunities and financial support. Furthermore, overall, persons with
disabilities have limited access to support services, including personal assistance, support in
decision-making and communication, non-medical crisis support, mobility support and
housing arrangement services (A/HRC/34/58). This long-term and cumulative impact of
exclusion and discrimination often results in deprivation of liberty.
30. Persons with disabilities are regularly deprived of liberty in order to access services
that should have been delivered in the community. For example, many families send their
children with disabilities to institutions (e.g. special education boarding schools, social
institutions, vocational centres) because there is no other way to ensure access to education.
Many persons with disabilities are also placed into residential institutions as a way to
access social protection benefits. Lack of awareness also plays a role as it is often
considered that persons with disabilities need specialized care that cannot be provided in
the community.
31. Furthermore, when States fail to provide families with the necessary support, it may
result in placement of their relatives with disabilities in institutions. Families that lack the
social and financial support to provide adequate assistance to those with disabilities, or are
unable to cope with the stress and pressure of providing around-the-clock support, are left
with very limited options and driven to take them to institutions or hospitals.
32. Until very recently, and still in many countries today, mental health services were
predominantly provided in inpatient settings. While some countries are shifting from
institutionalized care to community-based interventions, responses to intense distress and
crisis situations (often referred as “acute and emergency situations”) continue to be
generally addressed on an involuntary basis within inpatient wards, subjecting individuals
to even greater distress and trauma. However, evidence shows that community-based crisis
services can deliver the desired outcomes in assisting people during crisis situations. 23
There is a need for psychiatry to transform and embrace a human rights-based approach.
33. The relationship between poverty, homelessness and disability is well recognized.24
Persons with intellectual or psychosocial disabilities are overrepresented among the
homeless population. When the State fails to secure income and housing assistance to this
population, it is likely they will end up involuntarily committed or institutionalized.
Furthermore, homeless persons with disabilities are continuously exposed to the risk of
being deprived of their liberty, as survival behaviours (e.g. begging, sleeping in public
spaces, sitting down on sidewalks, loitering) are treated as criminal activity under laws that
criminalize homelessness.25
34. In fact, the criminalization of disability is a worrisome trend. In many jurisdictions,
legislation is increasingly penalizing atypical behaviours (e.g. running rampant, temper
22 J.F. Sowislo and others, “Perceived dangerousness as related to psychiatric symptoms and psychiatric
service use – a vignette based representative population survey”, Scientific Reports, vol. 7, No. 45716
(2017).
23 Gooding and others, Alternatives to Coercion, pp. 67–81.
24 C. Mercier and S. Picard, “Intellectual disability and homelessness”, Journal of Intellectual Disability
Research, vol. 55 (2011), pp. 441–449; and K. Salkow and M. Fichter, “Homelessness and mental
illness”, Current Opinion in Psychiatry, vol. 16, No. 4 (2003), pp. 467–471.
25 National Law Center on Homelessness and Poverty, No Safe Place: the Criminalization of
Homelessness in U.S. Cities (2014).
tantrums, yelling or self-injury) as well as public displays of poverty and lack of support
(e.g. lack of maintenance of properties).26 If persons with disabilities violate such codes of
conduct, they can face criminal penalties, including fines, community service or even arrest.
Accumulation of minor offences may lead to deprivation of liberty.27 Moreover, persons
with disabilities are repeatedly criminalized because the police take their non-compliant
behaviour as a threat.28 Persons with epilepsy or who are deaf have also been mistaken as
unruly.29
35. Prevention of suicide and self-harm are common justifications for compulsory
admission into psychiatric facilities. However, medical literature cannot provide strong
evidence on whether the risk for suicide decreases after involuntary treatment.30 Moreover,
a number of studies reported higher rates of suicide after psychiatric hospitalization. 31
Negative subjective experiences with compulsory admission can further lead to lower rates
of seeking or using services from the mental health system. Additionally, there is
compelling evidence that suicide is very difficult, if not impossible, to predict.32 Prevention
of suicide demands comprehensive multisectoral strategies, including safe and supportive
spaces to discuss suicide and self-harm, free from any potential coercive intervention.
36. Liability for malpractice and the ensuing risk management philosophy have proven
to be a galvanizing factor. In many jurisdictions, preventing people from harming
themselves is within the scope of the duty of care of service providers and families. This
increasing prospect of liability is making service providers err on the side of caution and
thus to resort to coercive measures. Furthermore, suicide rates increase when potential tort
liability is expanded to include mental health professionals, as those facing potential
liability may choose not to work with individuals considered to be at high risk of suicide.33
37. The interplay between disability and other identity traits produces further
inequalities in the enjoyment of the right to personal liberty. Based on gender and disability
stereotypes, women with disabilities are at risk of being viewed as “burdens” and being
placed in psychiatric facilities or other institutions, including the idea that they are unable to
fulfil the traditional role of mother and caregiver. Similarly, many older persons with
disabilities are placed in institutions or confined within homes, owing to prejudices based
on both age and disability. There are many reports of minority populations being
overrepresented in psychiatric facilities.34
26 A. Fang, “Hiding homelessness: ‘quality of life’ laws and the politics of development in American
cities”, International Journal of Law in Context, vol. 5, No. 1 (2009), pp. 1–24.
27 Australia, Parliament of Victoria, Law Reform Committee, Inquiry into Access to and Interaction
with the Justice System by People with an Intellectual Disability and their Families and Carers
(2013).
28 S. Krishan and others, “The influence of neighbourhood characteristics on police officers’ encounters
with persons suspected to have a serious mental illness”, International Journal of Law and Psychiatry,
vol. 37, No. 4 (2014), pp. 359–369; and K. Gendle and J. Woodhams, “Suspects who have a learning
disability: police perceptions toward the client group and their knowledge about learning disabilities”,
Journal of Intellectual Disabilities, vol. 9, No. 1 (2005), pp. 70–81.
29 S. Nevins, “The US prison system perpetuates ‘the criminalization of disability’”, 14 November 2014.
30 D. Giacco and S. Priebe, “Suicidality and hostility following involuntary hospital treatment”, PLOS
One, vol. 11, No. 5 (2016); C. Katsakou and S. Priebe, “Outcomes of involuntary hospital admission
– a review”, Acta Psychiatrica Scandinavica, vol. 114, No. 4 (2006), pp. 232–241.
31 D. Chung and others, “Suicide rates after discharge from psychiatric facilities: a systematic review
and meta-analysis”, JAMA Psychiatry, vol. 74, No. 7 (2017), pp. 694–702.
32 M. Chan and others, “Predicting suicide following self-harm: systematic review of risk factors and
risk scales”, British Journal of Psychiatry, 209 (4) (2016), pp. 277–283.
33 S. Dillbary, G. Edwards and F.E. Vars, “Why exempting negligent doctors may reduce suicide: an
empirical analysis”, Indiana Law Journal, vol. 93, No. 2 (2018).
34 R. Gajwani and others, “Ethnicity and detention: are Black and minority ethnic (BME) groups
disproportionately detained under the Mental Health Act 2007?”, Social Psychiatry and Psychiatric
Epidemiology, vol. 51, No. 5 (2016), pp. 703–711; L. Snowden, J.F. Hastings and J. Alvidrez (2009),
“Overrepresentation of black Americans in psychiatric inpatient care”, Psychiatric Services, vol. 60,
No. 6 (2009), pp. 779–785.
V. Right to liberty and security of persons with disabilities
A. Universal recognition of the right to personal liberty
38. The right to liberty and security is widely recognized in international and regional
instruments as one of the most fundamental rights. Liberty of person concerns freedom
from confinement of the body, and security of person concerns freedom from injury to the
body and the mind.35 Hence, it is inextricably linked to the enjoyment of other human rights,
including the right to personal integrity, the right to privacy, the right to health, the right to
freedom of movement, and the right to freedom of assembly, association and expression.
Moreover, persons deprived of their liberty are invariably placed into an extremely
vulnerable position and experience a higher risk of being subjected to torture and inhuman
and degrading treatment or punishment.
39. The right to personal liberty, as found in international human rights law, is not an
absolute right. It can be restricted in accordance with the law, for example, in the
enforcement of criminal laws or in the interest of public safety or public health. However,
the right to liberty and security of person acts as a substantive guarantee that deprivation of
liberty will not be unlawful or arbitrary. It is unlawful when it contradicts domestic or
international human rights law, whereas it is arbitrary when it is imposed in a manner that is
inappropriate, unjust, disproportionate, unpredictable, discriminatory or without due
process. These two prohibitions often overlap.36
40. Deprivation of liberty involves a more severe restriction on physical freedom than
mere interference with liberty of movement. Individuals are deprived of their liberty when
they are confined to a restricted space or placed in an institution or setting, not free to leave,
and without free and informed consent.37 Examples of deprivation of liberty include police
custody, pretrial detention, imprisonment after conviction, house arrest, administrative
detention, involuntary hospitalization, and placement of children in institutional care. They
also include certain further severe restrictions on liberty, for example, solitary confinement
or the use of restraints.
41. The universal nature of human rights means that the right to liberty and security
cannot be denied on the basis of prohibited grounds, such as race, sex, age, disability,
religion, national, ethnic, indigenous or social origin, or other status. Such deprivations of
liberty are discriminatory and, thus, unlawful and arbitrary. However, for too long
deprivation of liberty on the basis of actual or perceived impairment has been widely
justified. As discussed, in most jurisdictions, administrative, civil and/or criminal
legislation authorize the deprivation of liberty of persons on the basis of impairment or in
combination with other factors (e.g., when the individual presents an alleged “risk to self or
to others” or is in need of treatment or care).
42. Furthermore, the jurisprudence of international and regional human rights bodies has
been historically supportive of these exceptions, despite the fact that no core human rights
treaty states that disability can be used as a legitimated ground for deprivation of liberty. As
a consequence, all these practices have been normalized, resulting in persons with
disabilities worldwide experiencing disproportionately high levels of unlawful and arbitrary
deprivation of liberty in various forms, from disability-specific forms of deprivation of
liberty to detention in mainstream settings.
43. In that context, the adoption of the Convention on the Rights of Persons with
Disabilities represented a milestone in the recognition of the right to liberty of persons with
disabilities. Reaffirming the universality of human rights, the Convention reminds States
parties of their obligation to respect, protect and fulfil the right to liberty of all persons with
disabilities. Its article 14 stresses that persons with disabilities must enjoy the right to
personal liberty on an equal basis with others and, therefore, that they cannot be deprived of
35 Human Rights Committee, general comment No. 35 (2014) on liberty and security of person, para. 3.
36 Ibid., para. 11.
37 Ibid., paras. 5–6.
their liberty unlawfully or arbitrarily. Article 14 further clarifies that deprivation of liberty
on the basis of impairment38 is discriminatory and, thus, contrary to the letter and spirit of
the Convention. In doing so, the Convention has fundamentally challenged the prevailing
understanding of the right to liberty in relation to persons with disabilities, superseding
previous standards and interpretations.
B. Normative content of article 14 of the Convention
44. Article 14 of the Convention articulates the content of the right to liberty and
security of person as it applies to persons with disabilities. Article 14 (1) (a) reaffirms the
right to liberty and security of all persons with disabilities on an equal basis with others.
Article 14 (1) (b) stipulates that persons with disabilities cannot be deprived of their liberty
unlawfully or arbitrarily, and further clarifies that disability shall in no case justify a
deprivation of liberty. Finally, article 14 (2) reaffirms that all persons with disabilities
deprived of their liberty are entitled to procedural and substantive guarantees on an equal
basis with others, including conditions of accessibility and reasonable accommodation.
States parties thus have an obligation, with immediate effect, to: (a) refrain from engaging
in any action that unlawfully or arbitrarily interferes with the right to liberty, and from
authorizing such practices; (b) protect this right against practices by private actors such as
health professionals, and providers of housing and/or social services; and (c) take positive
action to facilitate the exercise of the right to liberty.
45. The right to liberty of persons overlaps and interacts with other human rights and
fundamental freedoms under the Convention. Those rights include, but are not limited to,
equality and non-discrimination (art. 5), life (art. 10), equal recognition before the law (art.
12), access to justice (art. 13), freedom from torture or cruel, inhuman or degrading
treatment or punishment (art. 15), freedom from exploitation, violence and abuse (art. 16),
integrity (art. 17), liberty of movement and nationality (art. 18), living independently and
being included in the community (art. 19), freedom of expression and opinion, and access
to information (art. 21), privacy (art. 22), health, including the right to free and informed
consent (art. 25), work and employment (art. 27), an adequate standard of living and social
protection (art. 28), and participation in political and public life (art. 29).
46. Article 14 establishes an absolute ban on deprivation of liberty on the basis of
impairment. While persons with disabilities can be arrested or detained lawfully, on an
equal basis with others, article 14 (1) (b) does not permit any exception whereby persons
can be deprived of their liberty on the basis of their actual or perceived impairment. Any
deprivation of liberty on such grounds would be discriminatory in nature and, thus, both
unlawful and arbitrary. These cases include, inter alia, the placement of persons with
disabilities into institutions, their involuntary commitment to mental health facilities, their
detention resulting from a declaration of unfitness to stand trial, exemption from criminal
responsibility or other diversionary mechanisms.
47. The Committee on the Rights of Persons with Disabilities has further stipulated that
this absolute ban also applies when additional factors are used to justify the deprivation of
liberty; commonly, being regarded as a “danger to self or to others” or in need of treatment
or care.39 In this respect, the Committee has recalled that, during the drafting process of the
Convention, there were extensive discussions on the need to include a qualifier (“solely” or
“exclusively”). 40 States opposed those proposals, arguing that they could lead to
misinterpretation and allow cases of deprivation of liberty based on impairment if other
factors were present. Similarly, a proposal to include a provision on periodic review was
not included because such a provision would contradict the outright ban on the deprivation
of liberty on the grounds of impairments, and might lead to an interpretation that detention
38 See Committee on the Rights of Persons with Disabilities, “Guidelines on article 14 of the
Convention on the Rights of Persons with Disabilities: the right to liberty and security of persons with
disabilities” (2015), para. 6.
39 Ibid.
40 Ibid., para. 7.
based on disability was permitted but required safeguards. Hence, the preparatory work of
the Convention confirms the intention of setting an absolute ban.
48. Placing a person with disabilities into an institution, either without their consent or
with the consent of a substitute decision maker, contradicts the right to personal liberty and
the right to live independently in the community (art. 19). The failure of the State to
provide persons with disabilities with the appropriate support to live independently in the
community cannot constitute a legitimate ground for deprivation of liberty. Likewise,
placing a child outside the family in an institution or residential home on the basis of an
actual or perceived impairment of the child and/or of his or her parents or legal guardian is
discriminatory and, therefore, arbitrary and unlawful.
49. Involuntarily admitting a person to a mental health facility on the basis of an alleged
mental illness or mental disorder contradicts the right to liberty and security of person and
the principle of free and informed consent (art. 25 (d)). Everyone has the right to be
provided with desired mental health services and/or other supports based on their free and
informed consent, and to refuse any unwanted services without being deprived of their
liberty, including those experiencing severe distress or extreme mental states. When
admission leads to involuntary treatment and forced medication, involuntary commitment
also violates the rights to security of person, personal integrity (art. 17) and freedom from
torture and ill-treatment (art. 15).
50. Deprivation of liberty resulting from declarations of unfitness to stand trial or non-
criminal responsibility due to “insanity” or “unsound mind” are contrary to the right to
personal liberty and access to justice (art. 13). In such cases, the person is usually diverted
from the proceedings and subjected to security measures entailing deprivation of liberty and
involuntary treatment, often indefinitely or for significantly longer periods of time than if
they had been convicted of a crime in accordance with usual procedures, thereby denying
them the same due process guarantees as others (A/HRC/37/25, para. 36). States have an
obligation to ensure that judicial guarantees and safeguards protecting the rights of those
accused of a crime apply to all persons with disabilities, highlighting the presumption of
innocence, the right to stand trial and the right to a fair trial, including the provision of
procedural and age- and gender-appropriate accommodations.
51. Placement of children with disabilities outside a family into institutions or
residential homes for the purpose of care constitutes an arbitrary deprivation of liberty that
also contravenes the right to home and family (art. 23). Accordingly, where the immediate
family is unable to care for a child with disabilities, States must provide alternative care
within the wider family and, failing that, within the community in a family setting. The
notion of “suitable institutions” under article 20 of the Convention on the Rights of the
Child and the Guidelines for the Alternative Care of Children should be reviewed under the
higher standards upheld by the Convention on the Rights of Persons with Disabilities. As
article 41 of the Convention recognizes, its implementation should not affect any provisions
of international law that are more conducive to the realization of the rights of the child.
52. States have an obligation to take appropriate measures to protect the right to liberty
and security of persons with disabilities against deprivation by third parties.41 States must
protect persons with disabilities against detention in institutions or community-based
settings run by non-governmental or private entities. They should also protect them against
wrongful deprivation of liberty by employers, schools and hospitals. Additionally, States
must protect persons with disabilities against home-based deprivation of liberty, including
home confinement, shackling and pasung.42
53. The denial of legal capacity is often both a cause and an effect of deprivation of
liberty; it can be used as a trigger for institutionalization or involuntary hospitalization, and
41 Human Rights Committee, general comment No. 35, para. 7.
42 Pasung involves confinement and neglect in addition to shackling. See N.H. Laila and others,
“Perceptions about pasung (physical restraint and confinement) of schizophrenia patients: a
qualitative study among family members and other key stakeholders in Bogor Regency, West Java
Province, Indonesia 2017”, International Journal of Mental Health Systems, vol. 12, No. 35 (2018).
is deeply connected with diversion from criminal justice systems into forensic services.
Deprivation of liberty may also result in restrictions to legal capacity. For example, in
certain jurisdictions, being placed in an institution leads automatically to formal deprivation
of legal capacity through legal incapacitation, and the institution itself becomes the person’s
guardian. Likewise, involuntary hospitalization in most cases entails forced medical
interventions. Furthermore, persons deprived of their legal capacity have limited
opportunities for challenging their placement or involuntary admission, as their capacity to
seek legal representation and participate in legal proceedings are often denied.
54. Persons with disabilities deprived of their liberty must enjoy all the procedural and
substantive guarantees established in national and international law on an equal basis with
others, including the right to be informed promptly of the reasons for arrest, the right to
judicial control of the lawfulness of detention, and the right to immediate release and
compensation for unlawful or arbitrary arrest or detention. 43 Article 14 (2) of the
Convention clarifies that all these procedural and substantive guarantees apply when
persons with disabilities are deprived of their liberty “through any process”, that is, under
any type of criminal, civil or administrative arrest or detention, including mental health-
related deprivation of liberty.
55. Access to justice is essential in protecting the right to personal liberty. States have an
obligation to ensure effective access to justice for persons with disabilities deprived of their
liberty, on an equal basis with others, in order to facilitate their participation in all legal
proceedings to review the lawfulness of their detention, and to obtain redress and reparation.
This obligation includes ensuring the accessibility of police stations and courts, effective
access to information and communication, and the provision of procedural accommodations.
56. The notion of support embedded in the Convention can play a role in deterring the
application of disability-specific detention regimes and other coercive measures (see
A/HRC/34/58). For example, whereas the current default response during crisis situations
in most jurisdictions is to override the legal capacity of the person and to authorize their
involuntary commitment, the support paradigm of the Convention calls for non-coercive
support responses within or outside the health sector. However, it must be underscored that
the obligation to end deprivation of liberty on the basis of impairment is independent of the
provision of support. States must fulfil their obligation to provide support alongside their
obligation to eliminate disability-based deprivation of liberty. The lack of support in the
community can never justify deprivation of liberty.
C. Impact of the Convention on international and regional standards
57. The paradigm shift of the Convention towards an absolute ban on the deprivation of
liberty on the basis of impairment has already had an important impact on the work of the
United Nations. Different entities, treaty bodies and special procedures have endorsed the
standards of article 14 of the Convention, including the Office of the United Nations High
Commissioner for Human Rights,44 the World Health Organization,45 the Committee on the
Elimination of Discrimination against Women (CEDAW/C/IND/CO/4-5, para. 37), the
Working Group on Arbitrary Detention 46 and the Special Rapporteur on the right of
everyone to the enjoyment of the highest attainable standard of physical and mental health
(A/HRC/35/21, para. 66).
58. Nevertheless, since the adoption of the Convention, three human rights mechanisms
have challenged the absolute ban on deprivation of liberty on the basis of impairment: the
43 International Covenant on Civil and Political Rights, art. 9.
44 A/HRC/10/48, paras. 43–47; A/HRC/34/32, paras. 25–28; A/HRC/36/28, paras. 32, 40, 42 and 50;
and A/HRC/39/36, para. 46.
45 World Health Organization, QualityRights guidance and training tools, available at
www.who.int/mental_health/policy/quality_rights/en.
46 United Nations Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone
Deprived of Their Liberty to Bring Proceedings Before a Court, paras. 38 and 103.
Human Rights Committee,47 the Subcommittee on Prevention of Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (CAT/OP/27/2, paras 5–11) and the
former Special Rapporteur on torture and other cruel, inhuman or degrading treatment or
punishment, Juan Méndez (A/HRC/22/53, para. 69). While they have ruled out the
possibility of depriving a person of their liberty on the basis of medical necessity or need of
care, they still maintain an exception in the case of risk to self or to others.
59. At the regional level, neither the Inter-American Court of Human Rights nor the
African Court on Human and Peoples’ Rights have addressed the issue of deprivation of
liberty on the basis of impairment since the adoption of the Convention. However, the
newly adopted Protocol to the African Charter on Human and Peoples’ Rights on the Rights
of Persons with Disabilities in Africa builds on article 14 of the Convention, prohibiting
any deprivation of liberty on the basis of impairment (art. 8 (5)). In the Inter-American
system, the Inter-American Court of Human Rights has embraced article 14 (2) of the
Convention arguing for accessibility and reasonable accommodation measures for prisoners
with disabilities,48 whereas the Inter-American Commission on Human Rights has referred
to article 14 (1) (b) of the Convention in a precautionary measure related to a psychiatric
facility and a recent country report.49
60. The Convention for the Protection of Human Rights and Fundamental Freedoms
from 1950 constitutes the only human rights instrument at either the regional or global level
that contemplates an exception to the right to liberty and security based on impairment (art.
5 (1) (e)). In this respect, the European Court of Human Rights has developed a set of
standards to determine when an individual can be deprived of their liberty on the basis of
“unsound mind”.50 These standards not only contradict article 14 of the Convention on the
Rights of Persons with Disabilities, but also fall below those developed by the international
human rights mechanisms referred to above.
61. Against this background, the Special Rapporteur reiterates that the detention of
persons with disabilities based on “danger to self or others”, “need of care” or “medical
necessity” is unlawful and arbitrary. First, it is discriminatory insofar as it only, or
disproportionately, applies to persons with an actual or perceived impairment, particularly
persons with intellectual or psychosocial disabilities, persons with autism and persons with
dementia. Second, it carries with it the denial of the person’s legal capacity to decide about
care, treatment and admission to a hospital or institution, as well as violating the rights to
personal integrity and freedom from torture and ill-treatment. Third, it is neither necessary
nor proportionate as it breaches the essential content of the right to liberty and security of
person and it does not achieve the purpose sought by the lawmaker. Moreover, it can
obstruct people’s recovery and re-traumatize those who have previously experienced abuse.
Furthermore, there is a growing body of evidence on the positive value of non-coercive
support practices within and outside the health sector.51
62. The criterion of “danger to others” is arbitrary and unjust in and of itself as it results
in the deprivation of liberty of persons with disabilities who have committed no actual
offence whatsoever, contradicting the general principle of presumption of innocence. An
individual who has actually committed an offence should have an opportunity to access
justice on an equal basis with others, benefiting from the same procedural guarantees and
safeguards. Notwithstanding the above, a radically different approach to criminal
punishment is needed to avoid the overrepresentation of persons with disabilities in prisons
due to discrimination in legal proceedings and social exclusion. The approach of restorative
justice, which focuses on the rehabilitation of offenders by repairing the harm done to
victims and the community at large, is a path to be explored.
47 Human Rights Committee, general comment No. 35, para. 19.
48 Chinchilla Sandoval et al. v. Guatemala, Preliminary Objections, Merits, Reparations, and Costs,
Judgment of 29 February 2016, para. 209.
49 Precautionary measure No. 440-16, Zaheer Seepersad regarding Trinidad and Tobago, 4 August 2017,
para. 21; and Situation of Human Rights in Guatemala, OEA/Ser.L/V/II, Doc. 208/17 (2017).
50 Stanev v. Bulgaria (application No. 36760/06), judgment of 17 January 2012, para. 153.
51 Gooding and others, Alternatives to Coercion.
63. Only 4 of the 177 States parties to the Convention have made declarations with the
intention of limiting the implementation of article 14.52 In addition, other countries have
issued reservations and declarations on articles 12 and 15 that may have an impact on the
realization of the right to personal liberty. 53 According to article 19 of the Vienna
Convention on the Law of Treaties and article 46 of the Convention itself, reservations and
declarations incompatible with the object and purpose of the treaty are not permitted. Given
the centrality of the right to personal liberty to the enjoyment and exercise of all rights set
out in the Convention, such reservations and declarations contradict its object and purpose.
The Special Rapporteur urges the concerned States parties to withdraw all their reservations
and declarations.
VI. Ending deprivation of liberty on the basis of disability
A. Law reform
64. States have an obligation to immediately repeal all legislation that allows for
deprivation of liberty on the basis of actual or perceived impairment, whether in public or
private settings. States must also repeal apparently disability-neutral legislation that has a
disproportionate and adverse impact on the right to liberty of persons with disabilities.
Mental health legislation, as long as it authorizes and regulates the involuntary deprivation
of liberty and forced treatment of persons based on an actual or perceived impairment (i.e.
diagnosis of “mental health condition” or “mental disorder”), must be abolished. For that
purpose, States should initiate a comprehensive law review process, encompassing different
areas of law, with the active participation of persons with disabilities and their
representative organizations.
65. States must recognize the right of persons with disabilities to access a wide range of
rights-based support services, including support services for persons experiencing crises in
life and emotional distress. Legislation must ensure that those support arrangements are
available, accessible, adequate and affordable; are provided on a voluntary basis; and
respect the rights and dignity of persons with disabilities (A/HRC/34/58). Additionally,
States must establish a legal framework that facilitates the creation and implementation of
such support measures.
66. States should review their civil and criminal legislation to ensure that regulations on
the legal liability and the duty of care of service providers and families do not encourage or
result in coercive practices. Criminal laws must also be reviewed to eliminate laws and
practices that criminalize homelessness and/or disability.
B. Deinstitutionalization
67. States must eradicate all forms of institutionalization of persons with disabilities and
set up clear deinstitutionalization processes. This process should include the adoption of a
plan of action with clear timelines and concrete benchmarks, a moratorium on new
admissions, the redistribution of public funds from institutions to community services and
the development of adequate community support, such as housing assistance, home support,
peer support and respite services (A/HRC/34/58). Deinstitutionalization initiatives should
include all kinds of institutions, including psychiatric facilities. Ill-conceived and under-
resourced deinstitutionalization processes have been shown to be counterproductive and
detrimental to the rights of persons with disabilities. Deinstitutionalization strategies must
refrain from simply relocating individuals into smaller institutions, group homes or
different congregated settings.
52 Australia, Ireland, the Netherlands and Norway.
53 Canada, Egypt, Estonia, France, Georgia, Kuwait, Malaysia, Poland, Singapore and the Bolivarian
Republic of Venezuela.
68. Many strategies are required to end the institutionalization of children with
disabilities. These include building up family support, the provision of child services within
the community, child protection strategies, inclusive education and the development of
disability-inclusive family-based alternative care, including extended kinship care, foster
care and adoption. All these forms of alternative care need to be provided with appropriate
training, support and monitoring to ensure the sustainability of such placements. States
should adopt an immediate moratorium on the institutional placement of children under the
age of 3.
69. States must take immediate action to end deprivation of liberty within private and/or
faith-based institutions, such as orphanages, small group homes, rehabilitation centres and
prayer camps. States have an obligation to protect persons with disabilities against wrongful
deprivation of liberty by third parties, including through preventive institutional
frameworks, education and monitoring. States must take immediate action to end all forms
of home confinement and shackling.
C. Ending coercion in mental health
70. States must end all forms of deprivation of liberty and coercion in mental health. For
those purposes, States must transform their mental health systems to ensure a rights-based
approach and well-funded community-based responses, including peer-led services.
Evidence shows that when Governments, service providers, courts and communities take
concerted action to move away from coercive practices, they are likely to be successful.
71. States must create support services for persons experiencing crises. The existence of
community-based services that do not resort to the use of force or coercion has proven to be
effective and is critical to ensure a right-based response. Non-coercive and non-medical
community programmes for persons in extreme distress have been established in several
places in the world as alternatives to hospitalizations (e.g. crisis or respite houses, crisis
respite services, host families and emergency foster care for children).54 Features of these
settings include fewer residents compared with hospital wards, a home-like environment, a
de-emphasis on medication and greater contact with staff. The availability of these
programmes has been shown to reduce instances of involuntary hospitalization and higher
satisfaction rates.55
72. Advance planning can be useful to support the exercise of legal capacity in crisis
situations.56 Advance directives allow people to set out their will and preferences as to how
they wish to be treated in any future event. They may also include refusals of certain
treatments and/or advance requests for particular options the person has found helpful in the
past. To be effective, it is critical to ensure that the advance directive is freely chosen by the
person, that they have full control over when it should take effect, and that it remains
subject to the person’s decision to change their will and preferences at all times.
D. Access to justice
73. Persons with disabilities should have access to justice on an equal basis with others
to challenge any deprivation of liberty. For that purpose, States must ensure that persons
with disabilities have access to procedural, age- and gender-appropriate accommodations,
including supported decision-making, in all legal proceedings before, during and after trial.
States must also promote appropriate training for those working in the field of the
administration of justice.
54 Gooding and others, Alternatives to Coercion, pp. 67–81.
55 C. Obuaya, E. Stanton and M. Baggaley, “Is there a crisis about crisis houses?”, Journal of the Royal
Society of Medicine, vol. 106, No. 8 (2013), pp. 300–302.
56 M.H. de Jong and others, “Interventions to reduce compulsory psychiatric admissions: a systematic
review and meta-analysis”, JAMA Psychiatry, vol. 73, No. 7 (2016), pp. 657–664.
74. States must guarantee that all persons with disabilities who have experienced any
form of arbitrary deprivation of liberty and/or exploitation, violence or abuse in the context
of such practices have access to adequate redress and reparations, including restitution,
compensation, satisfaction and guarantees of non-repetition, as appropriate. When detention
is found to be arbitrary, restitution necessarily implies the restoration of liberty.57
75. National preventive mechanisms, national human rights institutions and independent
mechanisms for the promotion, protection and monitoring of the implementation of the
Convention must be expressly mandated to carry out inquiries and investigations in relation
to the deprivation of liberty of persons with disabilities and provide them with assistance in
accessing representation and legal remedies. Disability-specific settings of deprivation of
liberty, such as psychiatric facilities and other institutions, must be effectively monitored.
Having accurate data on the numbers of persons with disabilities deprived of their liberty
will also allow monitoring of the trends and changes over time, thus enabling better
preventive and deinstitutionalization strategies.
E. Community support
76. States should implement a comprehensive system to coordinate the effective access
of persons with disabilities to rights-based support, including access to a range of in-home,
residential and other community support services (A/HRC/34/58). General services and
programmes, including education, health care, employment and housing, as well as other
community services, must also be inclusive of and accessible for persons with disabilities.
Persons with disabilities should have the opportunity to choose where and with whom to
live, and not be obliged to live in a particular living arrangement.
77. Children with disabilities and their families must be provided with different types of
information and support services, including early intervention, day care, education, child
protection and social services, to avoid family separation and institutionalization. Families
may also need assistance to understand disability in a positive way and to know how to
support their children in accordance with their age and maturity. When family separation is
unavoidable, States must ensure placement of children in appropriate family-based
alternative care arrangements that meet their best interests. Smaller institutions, group
homes or “family-like” institutions are no substitute for the right and the need of all
children to live with a family.
78. Disability-inclusive social protection systems can contribute significantly to
reducing deprivation of liberty of persons with disabilities by ensuring income security and
access to social services. States must implement comprehensive and inclusive social
protection systems that mainstream disability in all programmes and interventions, and
ensure access to specific programmes and services for disability-related needs (A/70/297).
Disability benefits must promote the independence and social inclusion of persons with
disabilities and not lead to their wrongful deprivation of liberty in institutions. All persons
with disabilities, including those with multiple and severe impairments, have a right to live
in the community and to be provided with the support they need to do so.
F. Participation
79. In the process of law and policy reform to end all forms of deprivation of liberty
based on impairment, States must closely consult with and actively involve persons with
disabilities and their representative organizations, in particular those groups whose rights
are directly affected, including children with disabilities. Likewise, persons with disabilities
and their representative organizations must participate in all decision-making processes
related to the design, implementation, monitoring and evaluation of mental health systems,
including the development of non-coercive community-based responses.
57 Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone Deprived of
His or Her Liberty by Arrest or Detention to Bring Proceedings Before Court, para. 26.
80. States should establish outreach and flexible mechanisms to enable the effective
participation of groups of persons with disabilities disproportionately targeted by
deprivation of liberty on the basis of impairment, as they may be inadequately represented
by existing representative organizations (A/HRC/31/62). 58 States should also promote
collaboration and partnerships between public authorities and civil society organizations,
including representative organizations of persons with disabilities, in the area of the
provision of support.
G. Capacity-building and awareness-raising
81. Changes to legal and policy frameworks will not be sufficient, unless accompanied
by a major shift in the societal perception of persons with disabilities. States must
complement law and policy reform efforts with training and awareness-raising activities for
authorities, public officials, service providers, the private sector, media, persons with
disabilities, families and the general public.
82. There is an urgent need to shift the public narrative about violence and persons with
psychosocial disabilities. States must adopt effective measures to combat stereotypes,
negative attitudes and harmful and involuntary practices against persons with disabilities.
Higher education centres should review their curricula, particularly within the schools of
medicine, law and social work; to ensure that their curricula adequately reflect the
innovations of the Convention.
H. Resource mobilization
83. States must stop funding services that deprive persons of their liberty on the basis of
impairment. Involuntary commitment and institutionalization are not only wrong but also
represent an unnecessary and ineffective use of public resources. Evidence demonstrates
that providing adequate support to persons with disabilities is a much more successful and
cost-effective option than putting them in institutions of any kind.59 Moreover, compulsory
admission to psychiatric facilities and other institutions exposes Governments to expensive
safeguards systems, as well as protracted and expensive litigation.
84. States have an obligation to take immediate steps, making full use of their available
resources, including those made available through international cooperation, to ensure that
persons with disabilities have their right to personal liberty respected and protected. State’s
planning and budgeting should incorporate funding for disability-specific support services,
as well monitoring. International cooperation should refrain from funding practices contrary
to the human rights-based approach to disability (e.g., institutionalization or coercive
psychiatric interventions).
VII. Conclusions and recommendations
85. The deprivation of liberty on the basis of impairment is a human rights
violation on a massive scale. Persons with disabilities are systematically placed into
institutions and psychiatric facilities, or detained at home and other community
settings, based on the existence or presumption of having an impairment. They are
also overrepresented in traditional places of deprivation of liberty, such as prisons,
immigration detention centres, juvenile detention facilities and children’s residential
institutions. In all these settings, they are exposed to additional human rights
violations, such as forced treatment, seclusion and restraints.
58 See also Committee on the Rights of Persons with Disabilities, general comment No. 7 (2018) on the
participation of persons with disabilities, including children with disabilities, through their
representative organizations, in the implementation and monitoring of the Convention.
59 D. Tobis, Moving from Residential Institutions to Community-based Services in Central and Eastern
Europe and the Former Soviet Union (Washington, D.C., World Bank, 2000).
86. Deprivation of liberty on the basis of impairment is not a “necessary evil” but a
consequence of the failure of States to ensure their human rights obligations towards
persons with disabilities. As this report illustrates, deprivation of liberty of persons
with disabilities is rooted in intolerance, and in States’ inaction to implement human
rights, particularly the rights to legal capacity, integrity, access to justice, living
independently in the community, the highest attainable standard of health, an
adequate standard of living and social protection. In the absence of appropriate
support and livelihoods, persons with disabilities are sent to institutions and mental
health facilities as if there were no other option. As designed, institutional care and
mental health services will only add to this accumulated structural discrimination.
87. The Special Rapporteur makes the following recommendations to States with
the aim of assisting them in developing and implementing reforms towards the full
implementation of the right to personal liberty and security:
(a) Recognize the right of persons with disabilities to liberty and security, on
an equal basis with others, in domestic legislation;
(b) Conduct a comprehensive legislative review process to abolish all laws
and regulations that allow for deprivation of liberty on the basis of impairment or in
combination with other factors;
(c) Implement a policy for the deinstitutionalization of persons with
disabilities from all kinds of institutions, including the adoption of a plan of action
with clear timelines and concrete benchmarks, a moratorium on new admissions and
the development of adequate community support;
(d) End all forms of coercive practices, including in mental health settings,
and guarantee respect for a person’s informed consent at all times;
(e) Guarantee access to effective remedies to all persons with disabilities
arbitrarily deprived of their liberty and take immediate action to restore their liberty;
(f) Ensure the development of support services for persons experiencing
crises and emotional distress, including safe and supportive spaces to discuss suicide
and self-harm;
(g) Actively involve and consult with persons with disabilities and their
representative organizations in all decision-making processes to end all forms of
deprivation of liberty based on impairment;
(h) Raise public awareness, particularly among policymakers, public
officers, service providers and media, about the right to liberty and security of
persons with disabilities, including combating stereotypes, prejudices and harmful
practices;
(i) Refrain from allocating funding to services infringing the right to liberty
and security of persons with disabilities and progressively increase funds allocated to
fund research and technical assistance towards ending all disability-specific forms of
deprivation of liberty, and to ensure access of persons with disabilities to community-
based services and social protection programmes.
(j) Encourage international cooperation actors, including non-profit
organizations, to refrain from funding disability-specific places or settings of
deprivation of liberty.
88. The Special Rapporteur also recommends that the United Nations system
enhance its capacities and adequately consider the standards on the right to liberty
and security of persons upheld by the Convention on the Rights of Persons with
Disabilities in all its work, including when supporting the legislative and policy
reforms of States.