Rights of persons with disabilities

The meaning of disability in light of the United Nation Convention on the Rights of Persons with Disabilities (UN CRPD)

This article is meant to shed light into the meaning of disability as it is envisaged by the United Nation Convention on the Rights of Persons with Disabilities (hereinafter the Convention/UN CRPD).[1] It briefly addresses the extent to which national legislations in countries across Europe are in compliance with the Convention's underlying values in this respect. The country selection has been done in accordance to the bad practice/good practice criterion. It should be noted that legal definitions of disability in these countries vary in accordance to their different legal purposes.[2] The laws discussed below have not been selected according to the common purpose endorsed. Rather, their random selection is meant to emphasize the model of disability they advance. The article concludes with recommendations regarding measures that states need to take in order to be in accordance with the Convention's approach on disability.

Disability has been traditionally considered a medical condition located within a particular individual, something that needed to be fixed by treatment or rehabilitation. According to this approach it is the disabled person that needs to be changed or altered. The question of how societies create obstacles for persons with disabilities is hardly ever raised.

An alternative to this view is the social model of disability which stands at the core of the UN CRPD. This approach recognizes that disability is a human rights issue and understands it as a social construct rather than an inherent quality of the individual.[3]It puts emphasis on the removal of societal barriers-be they architectural, legal, organizational or simple prejudice and hostility.

Despite the fact that it promotes a social model of disability, the Convention does not contain a universal legal definition of disability. But it does provide for an inclusive and modern approach to disability. The question is not whether or not the UN CRPD should have given an exact definition of disability. For obvious reasons, the answer is no. People with disabilities are a homogenous group because "disability" is a concept that refers to different conditions of mind and body. The boundary between ability and disability is not often clear and can change every day with advances in the medical science. [4]

Although the Convention does not give an exact definition of "disability" or "persons with disabilities", its Preamble and Article 1 include principles which are meant to clarify the application of the Convention. While the Preamble establishes a conceptual definition of disability, the objective of Article 1 is to define the group of people with disabilities to be covered by the Convention.

Paragraph (e) of the Preamble stipulates that "disability is an evolving concept and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others". Therefore, disability is the result of the interaction between negative attitudes and an unwelcoming environment with the conditions of certain persons. It is recognized that disability is not fixed and can alter, depending on the environment of each society. It therefore leaves room for States that interpret and implement the Convention to use different conceptualizations of disability as they evolve over time.

Furthermore, paragraph (i) of the same Preamble recognizes the "diversity of people with disabilities", drawing the attention to the fact that people with disabilities are a heterogeneous group, covering people with different impairments from a wide variety of backgrounds.

Article 1 provides that "persons with disabilities include those persons 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".

As a consequence, the Convention does not refer to a specific group of persons with disabilities, but refers to persons with long-term physical, mental, intellectual or sensory impairments as beneficiaries of the Convention. It has been argued that the mentioning of "long-term disability" is unfortunate, as states would interpret this in a narrow manner and leave out people with temporary or recurrent disabilities from UN CRPD related policies and entitlements.[5] However, the reference to "includes" suggests that the application of the Convention by States should not be restricted to the already mentioned categories, but can also include other categories, such as persons with short-term disabilities. In time, the Committee on the Rights of Persons with Disabilities will provide future guidance regarding interpretation, but it needs to be clear that Article 1 does not include an exhaustive list, but allows for a wider definition. It urges States to revise their definitions of disability and "persons with disabilities" where narrower and more limited definitions are currently in use.

Some authors rightly argue that the definition of disability may not and should not become a key interpretative issue.[6] This is because the Convention is based on a strong non-discriminatory approach. For example Article 5, which secures the right to equality and non-discrimination, prohibits "all discrimination on the basis of disability".[7] This is a much wider concept than the definition of disability that focuses on the specific impairments of an individual. Therefore, discrimination on the basis of disability could also reach to those who do not have impairments, but who are disadvantaged because of someone who has a disability (for example the mother of a child with a disability, trying to re-enter the labor market)[8].

Definitions of disability across Europe

The definitions of disability in the European countries vary in accordance with the disability model being used. [9]

Bulgaria is an example of a country whose national legislation is not in compliance with the principles of the UN CRPD. Disability is defined as the "loss or damage to physiological and anatomical structures resulting in a loss of their physical and mental psychological functions".[10] A person with disability is considered "any person regardless of age with a physical or sensory or mental disability which hinders his/her social integration and participation in public life and opportunities for communication, training and employment"[11]. The law also stipulates that only persons with permanent disabilities are entitled to governmental support.[12] All these definitions of the law show that a medical model of disability is preferred to the social model and the emphasis is put on the lack of individual abilities rather than on environmental barriers. The responsibility for assigning disability is left to medical agencies alone and not to multidisciplinary committees.

Similarly, according to the German Social Law Code persons are disabled if "their physical functions, mental capacities or psychological health are highly likely to deviate for more than six month from the condition which is typical for that age and whose participation in the life of society is therefore restricted".[13] Severely disabled persons are those whose degree of disability is at least 50%. While the German definition of disability emphasizes the deviation from a typical condition without referring to impairments, severely disabled persons are defined in accordance to a pre-determined list of impairments. Furthermore, the definition only covers persons who are presently disabled.

These are not the only countries in Europe whose legislation concerning disability focuses only on "loss of activity" and a functional assessment of disability. It is also the case of Armenia, Hungary, Estonia or Russia[14]. Ireland [15] also has an impairment related definition of disability, the only important difference being that it does not require a certain severity of the impairment. Past, present, future and imputed disabilities are covered by the definition.

By contrast, the definition of disability in Serbia is to a greater extent influenced by the social model. The National Strategy for Enhancement of Status of Persons with Disabilities, which was adopted on 28 December 2006, uses the definition provided by the Law on Prevention of Discrimination against Persons with Disabilities[16]. The law stipulates that "persons with disabilities are persons with physical, sensory, intellectual or emotional impairments acquired at birth or at later stages in life, which due to social and other barriers cannot fully participate, or are limited in their participation, in social activities at the same level as others".[17] Although inspired by the social model of disability, people with psycho-social or psychiatric disabilities are not covered by the definition. This is because Serbia has a long tradition of not considering people with psycho-social or psychiatric conditions as part of the disability population.[18]

Similarly, the Ministry of Health in the Netherlands confines its definition of disability to "physical, sensory and learning impairments".[19] Psycho-social disabilities are not included, as they fall outside the disability area. This is also the case of Hungary. Its law on the Rights and Equal Opportunities of Persons with Disabilities excludes persons with mental health or psycho-social disabilities from its definition of disability. [20]

The Finish definitions on disability represent a good practice example. They include a consideration of barriers to participation in the community and imply the need to remove them in order to alleviate the consequences of impairments and disability.[21] This can be seen in the description of the legislative purpose. The purpose of the Services and Assistance Act for the Disabled (1986/380) is expressed in terms consistent with the social model "(...) to improve the ability of a disabled person to live and act as a member of society in equality with others and to prevent and eliminate the disadvantages and obstacles caused by disability".[22] For example, entitlement to transport services is defined in section 5 of the Act as: "in the arrangement of transport services and related escort services, a person shall be considered severely disabled if he has special difficulties in moving and owing to his disability or illness; he cannot use public transport without unreasonable difficulty".[23]

Moreover, the Act on Special Care of Mentally Handicapped Persons (519/1977) defines a person with disability as "one whose development and mental functions are prevented or disturbed because of an illness, a defect or an injury that is congenital or has arisen at the developmental age and who have no access to the services they are in need of in virtue of some other law". [24]

Conclusion:

In light of the UN CRPD the questions that each country needs to answer (Latvia included[25]) are: do legal definitions of disability still perpetuate the medical model of disability? What can be done to move towards a social model of disability?

It is clear from the examples provided above that countries such as Bulgaria and Germany (and not only) perpetuate a medical model of disability, as their definitions are narrowly construed to include only permanent or "truly disabled persons". The German definition does not cover all persons affected by disability-based discrimination. It ignores past, future and presumed disabilities. In fact, none of the definitions analyzed in this article cover persons who are associated with disabled persons as subjects of discrimination.

Ireland is a good example of a country who endorses the social model of disability, since its definition is not based on a "truly disabled person" and covers past, present, future and imputed disabilities.

Therefore, in order to avoid the medical model of disability, definitions should not be based on a certain severity of disability, should cover past, present, future and imputed impairments and associates and should stress on the environmental barriers that disable individuals. [26]

It is regrettable that in countries such as Serbia, Hungary and the Netherlands, people with psycho-social disabilities are not considered as part of the disability population. This is contradiction to Article 1 of the Convention which stipulates that "persons with disabilities include those persons who have long-term physical, mental, intellectual or sensory impairments (...)".The list means that national definitions of people with disabilities have to include at least these groups; therefore people with mental disabilities must also be covered. As already emphasized, this is a non-exhaustive list of types of disabilities, so states can go beyond these groups.

Most importantly, the UN CRPD is based on a non-discriminatory approach. Therefore, states need to adopt anti-discriminatory legislation which includes all the anti-discriminatory provisions enacted in the Convention. For example, the provision of reasonable accommodation in Article 2 is in line with the EC Directive 2000/78[27], but extends the concept to all areas of life and not just employment and vocational training.