Law and policy are very important elements in ensuring that the Convention is translated into the national legal and political order. However, they should be accompanied by practical measures to turn standards into reality for persons with disabilities. Through service delivery, State and non-State service providers can ensure that persons with disabilities have access to the facilities, goods and services that they are entitled to, according to the Convention.
Service delivery relates to many of the Convention's articles, including:
Service delivery existed well before the adoption of the Convention. However, it needs to comply with the principles and standards laid down in the Convention if it is to contribute to the Convention's effective implementation. This means that service delivery must meet the general principles in article 3 of the Convention: for example, services should not discriminate on the basis of disability, they should respect the equality between men and women, promote individual autonomy as well as ensure the participation and inclusion of persons with disabilities. Service delivery which reinforces the segregation of persons with disabilities would, on the face of it, not be in compliance with the Convention.
In addition, service delivery should comply with the specific standards in the Convention's substantive articles. For example, under article 25 on the right to health, health professionals should provide health care to persons with disabilities on an equal basis with others, including on the basis of free and informed consent. Forced treatment for example, where this occurs on the basis of disability, would not be in compliance with the Convention.
Achieving inclusive and non-discriminatory services for persons with disabilities in compliance with the Convention does not necessarily mean that the same services are necessary for everyone at all times. As with other aspects of the Convention, service delivery requires a two-track approach. At times, the Convention requires access to mainstream services on an equal basis with others. At other times, specific support might be needed for persons with disabilities so that they can enjoy the same rights as persons without disabilities.
Three forms of services are needed to implement the Convention:
Mainstream services: these refer to services that are used by and designed for the whole population. In such cases, it is important that the services are inclusive of and accessible to persons with disabilities. Indeed, accessibility is crucial: by ensuring that facilities, goods, services, transport, information and technology are accessible, many persons with disabilities can enjoy their rights and live independently in the community in the same way as persons without disabilities. Some examples of mainstream services are:
Support services: these refer to services that contribute directly to overcoming barriers facing persons with disabilities and are meant to strengthen their participation in mainstream society. In other words, while access to mainstream services ensures that the same services are accessible to all persons with or without a disability, access to support services requires services tailored to persons with disabilities (but not persons without disabilities). Examples include:
Specific services: these services either prepare persons with disabilities for inclusion into mainstream society or at times replace mainstream or support services if the person cannot be fully accommodated in the community. In such cases, the services should always target inclusion and not isolation. For example:
Many actors are involved in delivering services—mainstream, support or specialized—to persons with disabilities:
For law and policy reform, the State clearly has the lead role, but in service delivery the private sector, national and international civil society as well as the State are involved. At the level of the State, the central Government has a regulatory role and also a service provision role, but other levels of government, particularly municipal/local, have a role to play, too.
What then is the role of the State?
The duty of the State is paramount: Human rights law identifies the State as the primary duty-bearer to promote, protect and ensure the implementation of the Convention.
The State must:
1. Fulfil its duties as primary duty-bearer: The duties under the Convention fall first and foremost on the State. The entire Convention establishes duties on the State to promote, protect and ensure the rights of persons with disabilities. This does not mean that the State must provide services itself. For this reason, the Convention uses terms such as the State undertakes “to promote” or “to encourage” or “to facilitate” the provision of services. However, at times, the State must provide services—for example, in outlying regions or unprofitable areas where private business might not be active or which the not-for-profit sector might be unable to reach.
2. Regulate the private sector: Where private actors supply services, the State need not duplicate these services, however, it still has a duty to regulate the private organizations that supply services. The Convention recognizes this, especially in article 4 (1):
States Parties undertake ... (e) to take all appropriate measures to eliminate discrimination on the basis of disability by any person, organization or private enterprise.
The broad understanding of “discrimination” in the Convention means that the State duty to regulate the private sector (including private individuals) goes beyond regulating only direct discrimination. It should also regulate indirect discrimination (for example, where persons with disabilities are effectively excluded because facilities are inaccessible or relevant services are not offered).
The Convention also refers to specific areas where the State should regulate the private sector:
3. Regulate different levels of government: The central Government must also regulate its own service provision and that of other levels of government. Article 4 (1) (d) requires the State to ensure that public authorities and institutions act in conformity with the present Convention. Public authorities should be understood in broad terms to include authorities across different ministries in the central Government but also, as noted previously, to all parts of the State, including the provincial and local levels.