Consensus Paper

Part I: Introductory

Definitions

Whilst discussing the definitions part of the statute, it was acknowledged that an exhaustive formulation of the definitions clause of the New Act could not be done till the entire statute has been finalized. This is because the definitions section is the dictionary of the Act and whether a word needs defining or not can only be decided after the words that are to be used in the statute have been finalized. Consequently, the sub group decided to limit its attention to those terms which they were certain would necessarily be used in the New Law. It was also decided that those terms which were being defined because they exist in the current Disability Act shall be defined only if those authorities, entities or concepts were retained in the New Law.

Utilizing the CRPD Definitions

The sub group decided that the definition of communication; language; discrimination on the basis of disability and universal design should be the same as in the UNCRPD. In relation to reasonable accommodation it was decided after much deliberation that a gender component shall also be introduced into the definition used in the CRPD. It was also suggested by some members that an explicit mention of age should also be inducted into the definition, however no final decision was taken on this suggestion and it was agreed that further research would be undertaken by the sub group in order to justify a mention of age related accommodation.

As a result of all the above mentioned decisions, the sub group largely devoted its attention to the definition of disability; person with disability; establishment and barrier. Since the question of defining disability was closely connected with the issue of certification, this sub group also deliberated upon the nature of the certifying authority and the manner in which certification needed to be undertaken.

Disability

The UNCRPD does not define disability and the preamble to the Convention explicitly states that disability is an evolving concept. The CRPD also expresses a specific preference for the social model of disability. Even as the Convention does not define disability, it incorporates a definition of a person with disability in the purpose article of the Convention. This definition of person with disability points out that a person with disability is one who has physical, mental, intellectual or sensory impairments which in interaction with various barriers hinders their full and effective participation in society.

The sub group wished to address the discrimination experienced by all persons with disabilities. At the same time, it wanted to ensure that the entitlements extended to persons with disabilities were availed of by those who most needed them. Whilst a generic definition drawing upon the social model could address the question of discrimination, it would be overly inclusive for purposes of entitlements. An enumerative definition of disability with a severity component built into it could to some extent answer the second concern of the sub group, however if this was done then the subgroup perforce had to endorse the medical model of disability. After a lot of deliberation it was ultimately decided to go for two definitions of persons with disabilities, one, which was generic and the other, which was enumerative.

The generic definition would be used to address the non-discrimination mandate of the statute; whilst the enumerative definition would be used for the entitlement segments of the New Law. It was further decided that only those impairments would be enumerated in the New Law for which explicit entitlements were provided in the statute. Any condition for which no entitlements were provided will not be named in the enumerative definition. However the enumerative definition would have a residuary clause which would allow for other impairments to be included if required without going in for a statutory amendment.

No final decision was taken on the placement of these two definitions, even as various options were discussed. Thus, for example, both definitions could be in the definition clause with the generic one being applicable to the entire law except for the entitlement provisions and the enumerative one could be made expressly applicable to the entitlement provisions. Other options are to place the generic definition in the definition clause and the enumerative definition in the specific chapter guaranteeing the entitlements. The sub group decided that various alternatives shall be explored and that option which best advanced the two purposes of non-discrimination and entitlement protection shall be used. The Legal Consultant was mandated to provide these various alternatives in the working draft.

Even as the sub group decided to opt for both the generic and enumerative definition, it had to further decide as to how the disabilities enumerated in the enumerative definition had to be defined. Should the statute only utilize a medical definition as is the present practice or should a socio-medical definition be incorporated? Whilst a strong preference was expressed for adopting a socio-medical definition, it was realized that there were no tools or measurement instruments which allowed for the immediate implementation of the socio-medical model. It was therefore decided that the New Law shall provide for immediate research to be undertaken taken to develop appropriate socio-medical tools which shall become the basis of certifying persons with disabilities for the purpose of entitlements after these instruments have been duly tested and authenticated. In the transition period the existing method of certification would continue with this modification that once a 'disability certificate' had been issued by a duly constituted authority, it shall be recognized by all authorities in all parts of the country. On the question of the necessity of a certificate for those who were not seeking any entitlements under the Act but required protection from discrimination, it was decided that identity procedures employed for the general population such as the UID should be used.