JUSTICE FOR ALL under the Committee’s interpretation of Art 12, an adjudication of the criminal charges should proceed with the defence lawyer operating on what he or she believes is the best interpretation of the individual’s will and preference. In 2020, the UN International Principles and Guidelines on Access to Justice for Persons with Disabilities were adopted.52 They recommend that States guarantee that persons with disabilities enjoy legal capacity on an equal basis with others, and where necessary, provide the support and accommodations necessary to exercise legal capacity and guarantee access to justice (Principle 1). The guidelines contained in the principles set out a number of specific provisions to this end: • ensure that individuals with disabilities are universally recognized as having legal capacity and the right to exercise it, with full participation in court proceedings; • eliminate restrictions based on constructs like "cognitive incapacity" or "mental incapacity"; • amend or repeal laws and policies limiting legal capacity, including those allowing for substituted decision-making, "sound mind" requirements, or doctrines like "unfitness to stand trial" and "incapacity to plead"; • eliminate medical professionals' sole authority in determining capacity; • remove barriers preventing individuals with disabilities from initiating legal claims; • establish enforceable rights for individualised procedural accommodations, including support in all legal proceedings; • provide intermediaries for effective communication between individuals with disabilities and legal entities; and • grant the right to appeal or seek restoration of legal capacity with access to legal assistance for those previously declared without capacity. Moreover, according to Principle 5, persons with disabilities are entitled to all substantive and procedural safeguards recognized in international law, whether in criminal, civil or administrative procedures, on an equal basis with others, and States must provide the necessary accommodations to guarantee due process. They include the presumption of innocence and the right to remain silent and are afforded to all persons with disabilities on an equal basis with others. Procedural accommodations to ensure the equal participation of the person with disabilities, when needed, must be available, including suspects and accused persons who require assistance to participate effectively in investigations and judicial proceedings. Accordingly, States ensure equal treatment, protection, and access to justice for suspects and accused persons with disabilities, including the presumption of innocence, accessible information, non-discrimination, procedural accommodations, legal safeguards, choice in defence and healthcare support regardless of legal outcomes. In September 2022, the Office of the High Commissioner for Human Rights (OHCHR) and the World Health Organization (WHO) issued a Call for inputs on a “Draft guidance on Mental Health, Human Rights, and Legislation”. The draft guidelines report that the UNCRPD’s impact on criminal responsibility remains under-examined and underlines the need for reform of criminal justice systems. Persons with disabilities require support and accommodation to ensure their equal participation and protection of their rights in legal proceedings. There is a concern that ordering security measures for individuals with mental health conditions who are found not criminally responsible contradicts the principle of no punishment without guilt, potentially resulting in indefinite confinement. Some suggest replacing such measures with general criminal defences and exploring alternative approaches like restorative justice and non-custodial measures to address criminal offences committed by individuals with disabilities and better serve both victims and society. However, the draft guidelines remain cautious, recognizing the lack of consensus on how to legislate systems of criminal responsibility attribution in a way that fully respects the rights of individuals with mental health conditions and psychosocial disabilities. 27