Table 5: Disability and the right to the highest attainable standard of health
Examples of Human Rights Violations
- A person with a disability is denied care at a local health center because the physician does not know how to care for them.
- A person with limited mobility cannot access a health care facility.
- Rural citizens with disabilities cannot access health facilities because they are too far.
- A person with a disability does not have the ability to pay for needed health care services.
- Specialized health services for children with disabilities are not readily available leading to late diagnosis and/or improper treatment.
- Lack of early detection programmes of disabilities for children.
- There are no rehabilitation services offered to individuals with disabilities in a certain city.
- A woman with a schizophrenia diagnosis is told by nursing staff that her abdominal pain is ‘all in your head’. She is later diagnosed with ovarian cancer.
- Women with disabilities are denied reproductive health services.
Note: While States parties have an obligation to move as expeditiously as possible towards the full realization of the right to health, States are immediately obligated to ensure non-discrimination in access to health care. Therefore, discrimination on the basis of disability is prohibited regardless of a State’s resources.
|Human Rights Standards||Treaty Body Interpretation|
|CRPD 25 States Parties recognize that persons with disabilities have the right to the enjoyment of the highest attainable standard of health without discrimination on the basis of disability. States Parties shall take all appropriate measures to ensure access for persons with disabilities to health services that are gender-sensitive, including health-related rehabilitation. In particular, States Parties shall: . . .
(d) Require health professionals to provide care of the same quality to persons with disabilities as to others, including on the basis of free and informed consent by, inter alia, raising awareness of the human rights, dignity, autonomy and needs of persons with disabilities through training and the promulgation of ethical standards for public and private health care;
|CRPD: recommending that China adopt measures to ensure that all health care and services provided to persons with disabilities, including all mental health care and services, be based on the free and informed consent of the individual concerned, and that laws permitting involuntary treatment and confinement, including upon the authorisation of third party decision-makers such as family members or guardians, be repealed and that China develop a wide range of community-based services and supports that respond to needs expressed by persons with disabilities, and respect the person’s autonomy, choices, dignity and privacy, including peer support and other alternatives to the medical model of mental health. CRPD/C/CHN/CO/1 (2012).
CRPD: recommending that China “allocate more human and financial resources to the public medical services and arrange the cooperation of the insurance companies.” CRPD/C/CHN/CO/1 (2012).
CRPD: urging Peru to “elaborate comprehensive health programmes in order to ensure that persons with disabilities are specifically targeted and have access to rehabilitation and health services in general” and to:
“Review its legal framework in order to ensure that insurance companies and other private parties do not discriminate against persons with disabilities;
Apply budgetary resources and create skills among health personnel, in order to effectively comply with the right to health care of persons with disabilities, ensuring that hospitals and health centres are accessible to persons with disabilities;
Provide services of early identification of disabilities, in particular deafness, designed to minimize and prevent further disabilities, including among children.” CRPD/C/PER/CO/1 (2012).
|ICESCR 12(1) The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.||CESCR, General Comment 14, para 19: “States have a special obligation to provide those who do not have sufficient means with the necessary health insurance and health-care facilities, and to prevent any discrimination on internationally prohibited grounds.”
CESCR, General Comment No. 5, para. 34: “States should ensure that persons with disabilities, particularly infants and children, are provided with the same level of medical care within the same system as other members of society. The right to physical and mental health also implies the right to have access to, and to benefit from, those medical and social services—including orthopaedic devices—which enable persons with disabilities to become independent, prevent further disabilities and support their social integration. Similarly, such persons should be provided with rehabilitation services which would enable them to reach and sustain their optimum level of independence and functioning.’ All such services should be provided in such a way that the persons concerned are able to maintain full respect for their rights and dignity.”
|CRC 3(3) States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.
CRC 24(1) States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services.
|CRC Committee: recommending that Egypt strengthen the availability and accessibility of community-based educational and health services for children with disabilities; ensure that all children with disabilities regardless of their status, enjoy access to rehabilitation services and increase the coverage of community-based rehabilitation facilities across its territory; and review the current health insurance system in order to cover all children and to lower the cost of health services for the most disadvantaged families.” CRC/C/EGY/CO/3-4 (CRC, 2011).
CRC Committee: recommending that Bolivia establish systems of early identification and early intervention as part of their health services; and undertake greater efforts to make available the necessary professional (i.e. disability specialists) and financial resources, especially at the local level and to promote and expand community-based rehabilitation programmes, including parent support groups to ensure that all children with disabilities receive adequate services. CRC/C/BOL/CO/4 (CRC, 2009).
CRC Committee: recommending that Malaysia provide children with disabilities with equal access to adequate social and health services, including psychological and counselling services, and tailored services for children with learning difficulties and behavioural disorders, and raise awareness about all services available.
CRC Committee: recommending that Finland “Establish a holistic legal and policy framework to guarantee the equal right of children with disabilities to access good-quality health -care services, public buildings and transportation.”
|Human Rights Standards||Case Law|
|ACHPR 16(1) Every individual shall have the right to enjoy the best attainable state of physical and mental health.
ACHPR 16(2) States Parties to the present Charter shall take the necessary measures to protect the health of their people and to ensure that they receive medical attention when they are sick.
|ACHPR: In a case against The Gambia, the Court held that the Lunatics Detention Act (LDA), the principle instrument governing mental health, is outdated for many reasons: overcrowding, no requirement for consent to treatment, no independent examination for the living conditions in units, and patients cannot vote. The Court ordered Gambia to repeal the law and develop new legislation for mental health in conformance with international norms and standards. 241/01 Purohit and Moore / Gambia (The) (May 2003).|
The UN Standard Rules on the Equalization of Opportunities for Persons with Disabilities 1993: “Persons with disabilities are members of society and have the right to remain within their local communities. They should receive the support they need within the ordinary structures of health, employment and social services.”
The Declaration on the Promotion of Patients’ Rights in Europe, promulgated by a WHO European Consultation: “Patients have the right to a quality of care which is marked both by high technical standards and by a humane relationship between the patient and health care provider.” World Health Organization, A Declaration on the Promotion of Patients’ Rights in Europe art. 5.3 (Copenhagen: WHO, 1994). Available at http://www.who.int/genomics/public/eu_declaration1994.pdf.
Charter of Fundamental Rights of the European Union, art. 35. Everyone has the right of access to preventive health care and the right to benefit from medical treatment under the conditions established by national laws and practices. A high level of human health protection shall be ensured in the definition and implementation of all Union policies and activities.