According to the World Health Organization (“WHO”), “[d]isability refers to the interaction between individuals with a health condition (e.g. cerebral palsy, Down syndrome and depression) and personal and environmental factors (e.g. negative attitudes, inaccessible transportation and public buildings, and limited social supports).”[1] Over 1 billion worldwide live with some form of disability and the WHO observed that “almost everyone is likely to experience some form of disability—temporary or permanent—at some point in life”, which means there is an “urgent need to scale up disability services in primary healthcare, particularly in rehabilitations interventions”.[2] The WHO has been critical of the health services for disabled persons, concluding that “they are invariably of poor quality or under resourced”, and noted that persons with disabilities were disproportionately affected during the Covid-19 pandemic.[3]
Article 25 of the CRPD[4] calls on States to “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” and to take “all appropriate measures to ensure access for persons with disabilities to health services that are gender-sensitive, including health-related rehabilitation” including the following:
“a) Provide persons with disabilities with the same range, quality and standard of free or affordable health care and programs as provided to other persons, including in the area of sexual and reproductive health and population-based public health programs;
b) Provide those health services needed by persons with disabilities specifically because of their disabilities, including early identification and intervention as appropriate, and services designed to minimize and prevent further disabilities, including among children and older persons;
c) Provide these health services as close as possible to people’s own communities, including in rural areas;
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;
e) Prohibit discrimination against persons with disabilities in the provision of health insurance, and life insurance where such insurance is permitted by national law, which shall be provided in a fair and reasonable manner;
f) Prevent discriminatory denial of health care or health services or food and fluids on the basis of disability.”
Article 26 of the CRPD focuses specifically on habilitation and rehabilitation and calls on States to “take effective and appropriate measures, including through peer support, to enable persons with disabilities to attain and maintain maximum independence, full physical, mental, social and vocational ability, and full inclusion and participation in all aspects of life” and to “organize, strengthen and extend comprehensive habilitation and rehabilitation services and programs, particularly in the areas of health, employment, education and social services, in such a way that these services and programs: a) begin at the earliest possible stage, and are based on the multidisciplinary assessment of individual needs and strengths; and b) support participation and inclusion in the community and all aspects of society, are voluntary, and are available to persons with disabilities as close as possible to their own communities, including in rural areas.”[5]
The Office of the High Commissioner for Human Rights (“OHCHR”) has observed that “it is not the disability itself that may put people with disabilities at risk, but rather the social conditions and barriers they face, such as stigma, dependency on others for care, gender, poverty or financial dependency”.[6] The OHCHR noted that persons with disabilities face various challenges relating to the enjoyment of their right to health including the following[7]:
· Persons with physical disabilities often have difficulties accessing health care, especially in rural areas, slums and suburban settings; persons with psychosocial disabilities may not have access to affordable treatment through the public health system; women with disabilities may not receive gender-sensitive health services.
· Disabilities are often neither diagnosed nor treated or accommodated for, and their significance is generally overlooked.
· Medical practitioners sometimes treat persons with disabilities as objects of treatment rather than rights-holders and do not always seek their free and informed consent when it comes to treatments and are often locked up institutions simply on the basis of disability, which causes serious adverse repercussions for their enjoyment of the right to health and other rights.
· Persons with disabilities are disproportionately susceptible to violence and abuse and are often victims of physical, sexual, psychological and emotional abuse, neglect, and financial exploitation, while women with disabilities are particularly exposed to forced sterilization and sexual violence.
The WHO also provided a list of the barriers that disabled persons must often overcome when they are attempting to access healthcare including the following: affordability of health services and transportation (in low-income countries, just over half of people with disabilities are unable to afford healthcare compared to about a third of the people without disabilities); lack of appropriate services for people with disabilities, especially in rural and remote areas; physical barriers including uneven access to buildings (hospitals, health centers), inaccessible medical equipment, poor signage, narrow doorways, internal steps, inadequate bathroom facilities and inaccessible parking areas create barriers to healthcare facilities; and inadequate skills and knowledge of health workers leading to higher incidence of inadequate care, bad treatment and outright denial of care.[8]
The WHO called on countries to do more about disability inclusion in their public health agendas as part of their overriding efforts to develop and implement national disability strategies and action plans to implement and monitor the CRPD, and the UN has also launched a disability inclusion initiative.[9] The WHO recommended that steps be taken with respect to access to effective, quality and affordable health services, making the best use of available resources; protection during health emergencies; and access to cross-sectorial public health interventions, such as water, sanitation and hygiene services to achieve the highest attainable standard of health. Some of the specific actions called for by the WHO included[10]:
· Changing policies and legislation, and adopting new policies and legislation as appropriate, to comply with the CRPD and establish healthcare standards related to care of persons with disability with enforcement mechanisms
· Ensure that people with disability benefit equally from public healthcare programs and are covered by private health insurance with affordable premiums that provides access to comprehensive services with reduced or eliminated out-of-pocket payments
· Ensure access to effective promotion, prevention, treatment, rehabilitation and palliative health services and provide a broad range of environmental modifications and adjustments (i.e., reasonable accommodation) to facilitate access to healthcare services
· Ensure accessibility of any public health information and empower people with disability to maximize their health by providing information, training, and peer support
· Ensure healthcare workers have the necessary competencies and skills to address the individual needs of people with disability, which requires integrating disability education into undergraduate and continuing education for all healthcare professionals and training community workers so that they can play a role in preventive healthcare services
· Ensure data disaggregation by disability; include people with disability in healthcare surveillance; and conduct more research on the needs, barriers, and health outcomes for people with disability
The ultimate goal of all these efforts is a shift toward complete social inclusion of persons with disabilities, a state that has been described in disability studies to include: “i) being accepted and recognized as an individual beyond disability; ii) having personal relationships with family, friends and acquaintances; iii) being involved in recreation and social activities; iv) having appropriate living accommodation; v) having employment; and vi) having appropriate formal and informal support”.[11]
To learn more, download the Project’s chapter on Right to Health under International Human Rights Law.
Notes
[1] Disability and Health, World Health Organization (December 1, 2020). The discussion of older disabled person’s right to health in this section is adapted from A. Gutterman, Older Persons’ Rights to Physical and Mental Health (Oakland CA: Ageism Project, 2021).
[2] Id.
[3] The WHO noted that very few countries collect data to enable disaggregation by disability in the health sector and that this led to failure to take into account disability in responses to control the pandemic and left disabled persons at higher risk of contracting the virus, developing severe symptoms from Covid-19 or dying from the disease and having poorer health during and after the pandemic regardless of whether they contracted the disease. Id.
[4] Article 25 of the UN Convention on the Rights of Persons with Disabilities.
[5] Article 26 also requires States to promote the development of initial and continuing training for professionals and staff working in habilitation and rehabilitation services and promote the availability, knowledge and use of assistive devices and technologies, designed for persons with disabilities, as they relate to habilitation and rehabilitation.
[6] Office of the High Commissioner for Human Rights, Fact Sheet No. 31: The Right to Health (2008), 17.
[7] Id. at 16-17.
[8] Disability and Health, World Health Organization (December 1, 2020).
[9] In June 2019, the UN Disability Inclusion Strategy was launched by the UN Secretary-General to promote “sustainable and transformative progress on disability inclusion through all pillars of the work of the United Nations”. This strategy requires all UN agencies to ensure that disability inclusion is consistently and systematically mainstreamed into all aspects of work. See Disability Inclusion in the United Nations System (New York: UN Secretary General, A/76/265 (2020).
[10] Disability and Health, World Health Organization (December 1, 2020).
[11] B. Rohwerder, Disability Inclusion: Topic guide (Birmingham UK: GSDRC, University of Birmingham, 2015), 6 (citing A. Rimmerman, Social inclusion of people with disabilities: National and international perspectives (CUP, 2013), 1).
link