regimes based on another person making decisions for someone, such as guardianship, wardship, or laws on
mental health that allow forced treatment, should be abolished. 253
128.
The CRPD Committee has held emphatically that regimes based on substitute decision-making
and denial of legal capacity have had a detrimental impact and continue to have a disproportionate detrimental
impact on persons with disabilities, especially those with a cognitive or psychosocial disability. 254 At the same
time, many states maintain a medical conception of persons with disabilities, on considering them as objects of
rights and as unable to make decisions for themselves. The then-U.N. High Commissioner for Human Rights
indicated that under that conception guardians, wards, or representatives of persons with mental disabilities
are appointed who on many occasions abuse their position of authority. 255
129.
The CPRD Committee has held that the model of support for adopting decisions of the person
with disabilities should take into account the following elements:
States parties have an obligation to provide persons with disabilities with access to support
in the exercise of their legal capacity. States parties must refrain from denying persons with
disabilities their legal capacity and must, rather, provide persons with disabilities access to
the support necessary to enable them to make decisions that have legal effect.
Support in the exercise of legal capacity must respect the rights, will and preferences of
persons with disabilities and should never amount to substitute decision-making.…
[S]afeguards must be present in a system of support in the exercise of legal capacity…. The
primary purpose of these safeguards must be to ensure the respect of the person’s rights, will
and preferences. In order to accomplish this, the safeguards must provide protection from
abuse on an equal basis with others. 256
130.
Based on what is indicated, the states should examine the laws that regulate wardships and
guardianships and take measures to draw up laws and policies to replace the basic regimes of substitution
decision-making by providing support for decision-making that respects the autonomy, will, and preferences
of the person. 257
131.
The European Court has noted that the states should provide persons with disabilities
resources that make it possible to challenge any limitation on their right to legal capacity. 258
132.
Among the violations that may arise, the IACHR highlights institutionalization in psychiatric
institutions of persons who have a mental health disorder or condition without their consent, forced medical
treatment, and the impossibility of living a life in community. In these situations, institutionalization may itself
end up being the conditioning factor for a mental health disorder or condition to become a disability, precisely
because of building a barrier in the terms of the social approach already referred to.
2.2
General considerations on institutionalization and the right to personal liberty
United Nations, Committee on the Rights of Persons with Disabilities, General Comment No. 1. Article 12: Equal recognition before the
law, May 19, 2014, para. 7.
254 United Nations, Committee on the Rights of Persons with Disabilities, General Comment No. 1. Article 12: Equal recognition before the
law, May 19, 2014, para. 9.
255 United Nations, High Commissioner for Human Rights. From Exclusion to Equality: Realizing the rights of persons with disabilities.
Geneva: United Nations. 2007, p. 97.
256 United Nations, Committee on the Rights of Persons with Disabilities, General Comment No. 1. Article 12: Equal recognition before the
law, May 19, 2014, paras. 16, 17, and 20.
257 United Nations, Committee on the Rights of Persons with Disabilities, General Comment No. 1. Article 12: Equal recognition before the
law, May 19, 2014, para. 26.
258 ECHR (European Court of Human Rights), A.N. v. Lithuania. Judgment of August 31, 2016, para. 90.
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