Human Rights and Disability A Manual for National Human Rights Institutions It is interesting to note that the WHO International Classification of Functioning, Disability and Health – which is intended to be of use to States in designing their service systems – now embraces the social model/human rights model of disability by highlighting barriers to participation.31 So the keeper of the medical model has itself now moved beyond a strictly medical approach to disability. 1.2. IMPLICATIONS OF THE HUMAN RIGHTS FRAME If the focus of the human rights frame on disability is on removing the barriers to recognition as a person, and all that this entails for personal freedom and inclusion, then it is only logical that definitions of disability will have to alter. Most traditional definitions are based on the ‘deficit’ of disability. This has had the result of making the person the ‘problem’. The focus on impairment when defining disability should be avoided as it is not consistent with the human rights re-framing of disability from ‘object’ to ‘subject’. Changing the traditional approach to disability in law, in public policy and in entitlement programs sends a very powerful message that it is the barriers that count, not the individual circumstances of the person. This entails law reform challenges for most States. On occasion – and especially with regard to setting eligibility criteria for entitlement programs – States will be confronted with the need to define persons with disabilities with respect to certain impairments or the severity of the impairment. The shift to the human rights framing of disability – grounded as it is in the social model – does not entirely remove the need to make such definitions. After all, States need clarity about the coverage of the Convention and need to be able to distinguish persons with disabilities from others. Accordingly, the UN CRPD provides that: Persons with disabilities include those 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.32 So impairment counts, whether it is physical, mental, intellectual or sensory. The Convention also insists that the impairment be long-term in nature, although it may be intermittent. However, severity does not count. This means, for example, that the right to live independently applies equally to those with severe or multiple disabilities as it does to those with impairments of a lesser degree or order. The nature or source of the impairment does not count. Indeed the preamble to the UN CRPD reminds States of the need: … to promote and protect the human rights of all persons with disabilities, including those who require more intensive support. This is something that is too easily forgotten when it comes to, for example, the exclusion of some children from inclusive education or some persons with disabilities, who have high support needs, from community living. Contrary to the ‘natural’ inclinations of some, the severity of impairment is itself not an excuse for exclusion. Of course, it might prove more difficult to achieve, as in the case of community living for those with high support needs. However, a situation such as this is exactly what the concept of ‘progressive achievement’ seeks to address. The existence of a severe impairment is not, by itself, a reason to deny a person with high support needs the right to live in the community with others. Although the severity of the disability may require different approaches to the realisation of that right, it does not in itself negate the right. 14 31 Available at www.who.int/classifications/icf/en/. 32 Article 1.