30 March 2016
The Committee on the Rights of Persons with Disabilities today concluded the examination of the initial report of Portugal on its implementation of the provisions of the Convention on the Rights of Persons with Disabilities.
Presenting the report, Ana Sofia Antunes, Secretary of State of Inclusion of Persons with Disabilities, said that Portugal had recently set up a permanent body composed of ten experts and charged with monitoring the implementation of the Convention. She referred to the National Institute for Rehabilitation, which was the body responsible of implementing policies in the area of disabilities. One of the most important pieces of legislation was the 2006 Disability Act, which punished acts of direct or indirect discrimination against persons with disabilities. There was a major shortcoming in the legislation concerning the guardianship arrangements or full and partial guardianship arrangements for persons with disabilities, which meant there could be prevented from managing their personal affairs or estates. That legislation would be reviewed, Ms. Antunes said.
During the ensuing dialogue, Experts noted that, despite the economic challenges facing Portugal, the Government seemed committed to promoting and protecting the rights of persons with disabilities. Experts were concerned about the situation of persons with disabilities under substituted decision-making and guardianship and asked what measures were being taken to ensure that their consent and views were taken into account. Similarly, concerns were raised with regard to continued forced internationalization, and Experts called for strengthened efforts to provide alternative community-based support services. A number of questions pertained to accessibility of the justice system, the right to vote, forced sterilization and the implementation of the 2030 Agenda for Sustainable Development. Experts regretted the lack of data collection and of independent monitoring mechanism.
The delegation of Portugal included representatives of the Ministry for Foreign Affairs, the Ministry of Labour, Solidarity and Social Security, the Ministry of Planning and Infrastructures, the Ministry of Internal Administration, the Ministry of Justice, the Ministry of Health, the Ministry of Education, the Secretary of State for Inclusion of Persons with Disabilities, the Secretary of State of Citizenship and Equality, as well as the Permanent Mission of Portugal to the United Nations Office at Geneva.
The Committee on the Rights of Persons with Disabilities will reconvene today at 3 p.m. to begin the consideration of the initial report of Thailand (CRPD/C/THA/1).
The initial report of Portugal can be read here: CRPD/C/PRT/1.
Presentation of the Report
ANA SOFIA ANTUNES, Secretary of State of Inclusion of Persons with Disabilities, introducing the initial report of Portugal, stated her country’s commitment to promote and protect the rights of all persons, including persons with disabilities. The initial report was drafted with the help of experts from the Government working directly on issues relating to disability, and following broad consultations with civil society representatives. Furthermore, civil society organizations had been encouraged to submit a shadow report on the implementation of the Convention on the Rights of Persons with Disabilities in Portugal. The Ombudsman had submitted a report as well, and had played a pivotal role for the development of indicators on the promotion and promotion of human rights in Portugal. Portugal had recently set up a permanent body composed of 10 Experts charged with monitoring the implementation of the Convention. The Experts came from the Government, Parliament, academia and civil society organizations.
The National Institute for Rehabilitation was the body responsible for implementing policies in the area of disabilities. Portugal had adopted legislation seeking to implement the different areas covered by the Convention, including in the fields of physical and digital accessibility, employment, and access to education. One of the most important pieces of legislation was the 2006 Disability Act, which punished acts of direct or indirect discrimination against persons with disabilities. The National Institute for Rehabilitation played a fundamental role in raising awareness on disability issues, and in disseminating information on the Convention. It also played an important role concerning capacity building arrangements for persons with disabilities. There was a major shortcoming in the legislation concerning the guardianship arrangements or full and partial guardianship arrangements for persons with disabilities, which meant they could be prevented from managing their personal affairs or estates. This legislation would be reviewed, she said.
Turning to the issue of education, Ms. Antunes said that approximately 98.5 per cent of children with disabilities were now integrated into mainstream schools. Shortcomings had however been identified concerning equipment and technology, and special allowances would be provided to remedy those. Measures had been taken to combat poverty of persons with disabilities and promote their social inclusion, including resource centres for inclusion and the creation of an Institute for Employment and Vocational Training. Employers could be compensated for employing persons with disabilities. Efforts had been made in the fields of innovation and scientific research to promote technological innovation helping and enhancing the lives of persons with disabilities. Measures had also been taken to promote adaptive sports and cultural inclusion. Inclusion of persons with disabilities was a priority for the current Government, as illustrated by the creation of a Secretary of State of Inclusion of Persons with Disabilities.
Questions by the Experts
ANA PELAEZ NARVAEZ, Committee Expert and Country Rapporteur for Portugal, congratulated Portugal for the nomination of a Secretary of State of Inclusion of Persons with Disabilities, and welcomed Portugal’s readiness to improve the situation of persons with disabilities in the country. Important steps had been taken, and improvements had been seen in various areas. Due to the economic crisis, there had been various legislative and economic provisions that had not been operationalized. Austerity measures had impacted on important work carried out by civil society organizations for the implementation of the Convention on the Rights of Persons with Disabilities. The establishment of adequate reasonable accommodation was not an obligation for companies, she regretted. The National Gender Equality Plan and the National Citizenship Plan contained measures aimed at addressing the needs of persons with disabilities, but had not been implemented.
The National Disability Strategy had not considered the issue of accessibility for children with disabilities. The reform of the Civil Code aimed at revising the concept of full guardianship for persons with physical disabilities, she noted, pointing out the fact that the Convention did not refer to any type of disability regarding the issue of legal capacity. The reform should include any persons with disability having legal capacity. With regard to personal freedoms, she was concerned about the possibility for persons with mental disability to be subjected to false internment or treatment without consent. This came as a consequence of the full guardianship regime. Portugal had not taken steps to assist mothers and fathers with disabilities in raising their children. She welcomed the delegation’s affirmation that approximately 98.5 per cent of children with disabilities were now integrated into mainstream schools, but expressed concern regarding physiotherapy for children. Restrictions for persons with “notorious mental disability” in relation to the right to vote were in contradiction with the Convention. Funds such as the European Social Fund offered the opportunity for Portugal to make progress in the areas of mobility, employment, education and other opportunities for the most vulnerable persons.
Moving on to the first round of questions, Experts raised a number of queries in relation to the implementation of the Convention. To put the primary prevention measures under the Convention on the Rights of Persons with Disabilities perpetuated the medical model of disability instead of fostering the human rights model of disability, an Expert noted. Was there any plan to review Portugal’s prevention policy? Had Portugal taken measures to comprehensively review its legislation and practices in light of the provisions of the Convention? An Expert asked what measures had been taken to monitor the implementation of the Convention on the Rights of Persons with Disabilities and the action plan adopted by the Government.
Committee Members asked about the number of complaints received in Portugal for cases of discrimination on the grounds of disability. Was there any legislation containing a definition which included the denial of reasonable accommodation as a form of discrimination? Were multiple forms of discrimination faced by some groups, particularly women with disabilities, addressed? An Expert asked whether Portugal would revise its Constitution in order to include disability as a possible ground for discrimination.
A question was raised regarding accessibility in the capital’s airport, hotels and public services. An Expert noted that persons with disabilities usually received low incomes, and asked what measures were being adopted to ensure that certifications of disability were issued and were not too expensive. An Expert asked a number of questions on accessibility to cultural monuments, and to the Government’s website. What enforcement mechanisms were in place to make all websites accessible to persons with disability?
Experts raised a number of questions regarding awareness-raising activities on disability, and particularly on children with disabilities, including throughout the media. What measures had been taken to combat negative stereotypes against women with disabilities, particularly with regards to their working capabilities?
Experts asked to which extent representatives of organizations of persons with disability could participate in public decision-making processes. What measures had been planned to increase their participation? What measures had been taken to ensure that children with disabilities were being listened to? Had measures been taken to promote and support organizations of persons with disabilities?
An Expert asked whether the national policies to combat violence against women and girls also addressed the needs of women and girls with disabilities. Were women with disabilities included in the development of laws aiming at tackling the issue of domestic violence?
Questions were raised with regards to the amount of the State’s budget dedicated to disability issues.
Replies by the Delegation
The delegation said that Portugal had eliminated the medical model of disability in the 1990s, and had made sure it did not underpin the efforts made to promote the rights of persons with disabilities. Portugal was, however, being careful not to undergo a social model at all costs, and to maintain a medical approach when necessary.
With regard to discrimination, the delegation said that the Portuguese Constitution contained a number of provisions aimed at regulating the rights of persons with disabilities. Its Article 8 Paragraph 2 stated that the provisions of international treaties ratified by Portugal were directly applicable. Article 13 enshrined the principle of equality, and Article 71 referred explicitly to persons with disabilities. The law prohibiting discrimination on the ground of disability set out penalties. The Criminal Code had 14 different provisions in which discrimination was set out as a component of the criminal offense, including inter alia for crimes of murder, neglect, qualified physical abuse, violence, abduction or trafficking, which made the penalty stiffer. The National Institute for rehabilitation monitored the implementation of the anti-discrimination legislation.
Portugal was providing recruiters with the necessary support to ensure reasonable accommodation for persons with disabilities. The law on discrimination did not contain an exhaustive list of discrimination, meaning that reasonable accommodation could be considered a ground for discrimination. Employers had to prove that the burden was unreasonable to justify refusing employing a person with disability. No burden could be considered unreasonable when the State was providing funding.
On accessibility, a delegate said that the majority of underground stations in Lisbon, including the one at the airport, were accessible to persons with disabilities. Portugal aimed for full accessibility in all public transport. Portugal had transposed standards set out by the European Rail Agency in that regard.
The certification of disability had indeed been subjected to a fee since 2013. It cost 50 euros for an initial certificate. The Government was trying to develop a joint model, and had requested a specialized opinion to lift, or at least to greatly reduce, this fee. The certificate attested to the fact that a person was eligible for certain tax reductions, and allowed beneficiaries to have reductions in public transportation fares.
Turning to the issue of violence against women and girls with disabilities, a delegate explained that Portugal had taken measures to provide training to police officers, and had created 311 units working on this area. The national plan for gender equality 2014-2017 contained one provision concerning women and girls with disabilities, a delegate said. Women and girls with disabilities were, however, taken into account for the implementation of the plan at the local level. Human rights indicators were used when assessing domestic violence situations. Around 27,317 complaints had been filed to the police forces, 84 per cent of them from women.
With regards to the institutionalization of children with disabilities, a delegate said that in 2015, there were 266 children and young people with disabilities who were institutionalized. Of these, 211 had a promotion and protection measure because they were at risk of neglect, abandonment, abuse or violence. This was not linked to their disability. Since January 2015, a new agreement with non-governmental organizations stipulated that not only would the value of State support be doubled, there was an additional contribution of 90 euros for every child attending a crèche or a nursery school. A delegate reiterated that most children with disabilities in Portugal attended mainstream schools, with the exception of some very serious cases. Even children with multiple disabilities had to spend at least 60 per cent of their school time in mainstream classrooms.
Questions by Experts
A Committee Member noted that the closure of psychiatric hospitals had not been followed by the creation of alternative community-based support services. There was only one independent living pilot project that was recently launched in the country. Did Portugal have any plans and practical measures for independent living and inclusion in the community? Were there any training programmes for persons willing to become assistants of persons with disability?
Experts raised concerns regarding the forced institutionalization of persons with mental illnesses, and asked what measures had been taken to protect their human rights, and whether their will and preferences were being respected.
In relation to forced sterilization, an Expert noted that this practice was banned by law, but expressed concern that this prohibition was not fully implemented in practice.
Experts asked what steps had been taken to abolish all forms of guardianship.
What measures had been taken to improve accessibility to historical and cultural sites for persons with disabilities?
An Expert noted that persons with disabilities in rural areas seemed to receive less support than persons with disabilities from urban areas.
On access to justice, Experts asked what accommodations were made for persons with disabilities, including for persons with disabilities who still found themselves under substituted decision-making. Experts asked whether members of the judiciary received training in line with the Convention on the Rights of Persons with Disabilities.
A couple of Experts referred to disability-inclusive disaster risk reduction programmes and activities, in line with the Sendai principles and in cooperation with the European Union.
Replies by the Delegation
Starting with budget allocations, the delegation said that the funding for disability issues had been increased. Portugal had introduced a supplement to the family allowance for children with disabilities. Portugal had also updated the third person or third party allowance for those families with a dependent with disabilities. Households with a dependent parent or child with disability had their taxable income reduced by 2.5 times the social index. Funding for civil society organizations’ projects and functioning had also been increased significantly, the delegation informed.
Independent living was a recent notion in Portugal. In 2015, a new project had been born in the Lisbon City Council, with the support of civil society organizations, aiming to support independent living. The European Union was also funding projects to support independent living. Portugal was finalizing a piece of legislation defining independent living with a view to ensure harmonization of funded projects.
With regard to migrants, the Government had created a programme to ensure home service for migrants with disabilities, thus benefiting 1,133 foreign citizens in 2014.
Legal incapacity was an exception in the Portuguese law, a delegate said. If someone was unfit to stand trial, that was only with regard to criminal proceeding, for example in the case of someone being considered not legally responsible for committing a criminal act because of a mental disorder.
In order to exercise their right to vote, persons with disabilities could have someone accompanying them. They could choose accessible voting places. There was public funding for transporting persons with disabilities to polling stations. A draft legislation before the Parliament would allow for Braille voting cards. Measures would ensure that there was no discretionary decision to remove someone’s voting right in case of a mental impairment.
On access to justice, the delegation informed that there were currently 593 employees with disabilities within the Ministry of Justice. A number of training activities on disability issues had been carried out for members of the judiciary, personnel of detention facilities and other law enforcement officials. Court hearings were made accessible for persons with disabilities. The witness protection act foresaw specific measures to ensure that adaptation was made for persons with disabilities. Emergency hotlines were available in the sign language, and persons with disabilities could lodge complaints directly to courts.
The health inspectorate had the mandate to independently visit detention facilities, including facilities holding persons with disabilities. The Ombudsman, whose office was in line with the Paris Principles, also had the mandate to visit all detention centres, psychiatric hospitals, temporary shelters, military and police prisons. The delegation was not aware of any case of torture or ill-treatment against persons with disabilities in detention. Persons with disabilities in detention were subjected to the same regulations as other inmates.
All educational establishments, both public and private, were being inspected every four years. Inclusive education was inspected as well. Inspectors had received specific training on inclusive education, a delegate said. Student representatives or their parents could file complaints that could lead to disciplinary measures.
The criminal code stated that consent might be expressed by any means. Free and informed consent was the basic principle. When a person with a disability was unable to understand the ground and context for a medical ground, he or she would be represented by a legal representative. In procedures such as sterilization or donation of tissue or an organ, the decision was always subjected to a technical opinion, and taken by a multidisciplinary team of doctors, and also subjected to court approval.
Questions by Experts
On education, Experts asked for updated data on funds allocated to ensuring accessibility of mainstream schools. A Committee Member asked whether Portugal had specific rules and legislation guiding the status of non-nationals, particularly refugees and migrants with disabilities, regarding their access to education.
An Expert noted that the employment rate of persons with disabilities was much lower than of persons without a disability. What measures were in the pipeline for a better employment of persons with disabilities in the public sector and open labour market, in accordance with Article 27 of the Convention on the Rights of Persons with Disabilities?
On justice, Experts raised questions about accessibility of court proceedings, including access to Braille or sign language during instances of divorce or other civil matters.
Several questions pertained to the health sector, and to training on disability issues provided to the personnel of health services.
In cases where free and informed consent could not be given, an Expert noted that the person giving the best interpretation of will and preferences might not be a judge or a psychiatric, but a relative or someone very close to the concerned person.
Referring again to elections, an Expert asked about Portugal’s experience as regards accessibility of election campaigns. An Expert said no one should be deprived of their right to vote. Could institutionalized persons access the right to vote?
Experts reiterated questions related to accessibility of touristic and leisure places in Portugal.
Questions were also raised on access to sports and on the participation and coverage by Portugal in the next Paralympic Games.
What measures were being taken in order to support persons with disabilities when services for community inclusion were not provided?
On family issues, an Expert asked whether Portugal would review its Civil Code to ensure that all persons with disabilities had the right to marry and assume parental responsibility.
An Expert inquired whether Portugal would create an independent body charged with monitoring the implementation of the Convention.
Another Expert regretted the lack of data on issues faced by persons with disabilities, and linked that issue with the implementation of the 2030 Sustainable Development Agenda.
Replies by the Delegation
Refugees and migrants enjoyed a set of legal rights on an equal footing as other citizens. There was no distinction drawn between refugees with and without disability, and their children could access the same education.
Portugal was making progress towards ensuring that persons with disabilities had access to voting cards in Braille.
Institutionalized persons with disabilities had the right to vote, unless a judge decided otherwise. Sign language and Braille were available during electoral campaigns. Sign language was considered in the Constitution as an official language of the country. Braille had been recognized as an appropriate reading method by law in the 1940s.
Latest data showed that the number of persons with disabilities enrolled in mainstream education was even higher than 98.5 percent. Seven percent of the education budget was allocated to institutionalization measures. Organizations of persons with disabilities were the first to create schools for children with special education needs. Those organizations had cooperated with the State for transferring those in segregated schools into mainstream establishments, and had redirected their activities towards rehabilitation. There were 488 students learning sign language in 2016. The Ministry of Education had conducted campaigns against bullying at school, including against persons with disabilities. Students with motor sensory impairments had a quota for access to higher education, giving them priority access for two percent of the total places available in each institution.
Vocational training was being provided to persons with disabilities in order to improve their access to employment. Employers often did not realize how persons with disabilities could do their jobs, and negative stereotypes had to be deconstructed. Support was provided in the workplace.
On social support, a delegate said that a series of benefits targeted persons with disabilities and their families in order to help them overcome the extra costs resulting from their condition. Measures were taken to improve the social protection of persons with disabilities, combat poverty and promote their employability.
There was a national school sport programme. Schools tried to offer adapted sports for persons with disabilities, and tried to increase the number of teams with children with specific education needs.
The delegation informed that Portugal had conducted a census in 2011 on the basis of the Washington Group indicators. It had also set up a working group to define disability indicators, which would enable the collection of specific disaggregated data on disability.
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