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Don’t make mentally disabled person travel for assessment test: Madras HC to TN gov’t

HC also suggest that the government consider exempting those suffering from other disabilities also from appearing in person to obtain disability certificates

Sabrangindia 06 Jun 2022

Madras High Court

On May 12, 2022, the Madras High Court’s single-judge bench of Justice G.R. Swaminathan, took a compassionate view of challenges faced by mentally challenged people in a verdict highlighting the right to live with dignity of mentally disabled persons in a case of T.R. Ramanathan v/s. State of Tamil Nadu & Anr. [Writ Petition No. 12540 of 2022].  

The Court held, “It is clinically appropriate that assessment for issuing such certificates is done at their homes. I therefore hold that persons suffering from mental retardation or mental illness are entitled to have the assessment done at the place where they reside.”

The Court further held, “Authorities shall not insist that a person suffering from mental retardation/ mental illness should be physically present in the premises of the certifying institution. But this need not stop the Government from going into the issue and issuing a standard protocol to cover cases of those who are suffering from other disabilities, particularly, motor related physical disabilities.”

Brief Background of the case

The Petitioner in this case is on the verge of turning ninety and has a 61-year-old who suffers from mental disability. This son can neither speak nor express himself, nor move about freely. He also has severe anxiety disorder.

A certificate dated February 29, 1992 was issued by a Dr. Shanti Chandramohan, Assistant Physician Government General Hospital, Madras Medical College stating that the son suffers from a permanent mentally disorder. This was not noted by the Institute of Mental Health, Kilpauk.

The Petitioner became a widower a few months ago, and his son-in-law also died a few years ago. He is entitled as pensioner since November 1992. The Petitioner’s son will be entitled to receive the benefits of this family pension after his death. To avail the said benefit, an entry will have to be made in the petitioner's pension book. For that, a disability certificate must be obtained.

The Petitioner's daughter approached the Institute of Mental Health at Kilpauk for obtaining such certificate. The Institute insisted that the disabled man be brought for assessment. Left with no other option, on April 26, 2022, the son was taken to the Institute of Mental Health, Kilpauk in an ambulance. A group of paramedical staff literally bundled him into the vehicle. He was assessed and it was noted that he was mentally retarded. But this was deemed insufficient for issuance of certificate.

It was again insisted that he should be brought to the premises of the second respondent for conducting few more tests. Since he was traumatised by what happened on April 26, 2022, he developed severe anxiety and became paranoid and whenever anybody entered his home, he held on to the bars of the window. Even though the Petitioner's daughter informed the concerned officials that it was not possible to bring him for further assessment, the personnel attached to the second respondent Institute declined to pay heed to the same. That led to filing of the present Writ Petition.

Court’s Observation and Judgment

The Court had observed, “Article 41 of the Constitution of India mandates that the State shall, within the limits of its economic capacity and development, make effective provision for securing the right to public assistance in cases of sickness and disablement and in other cases of undeserved want. In Jacob M.Puthuparambil and Ors.Vs. Kerala Water Authority (1991) 1 SCC 28, the Hon'ble Supreme Court held that the Court should interpret a given statute so as to advance Article 41.”

The Court further observed that in view of the decision of the Supreme Court in Sambhavana Vs. University of Delhi (2013) 14 SCC 781, it can be observed that the state has a special obligation to design a special approach depending upon the special needs of the concerned category of disabled.

The Court also observed, “The Government of Tamil Nadu has introduced a laudable scheme “Illam Thedi Kalvi” (Education at doorsteps). This model can very well be applied to the case on hand.”

The Court further observed, “The disabled persons who are obviously entitled to rights guaranteed under Article 21 of the Constitution of India are entitled to obtain a certificate under Section 58 of the Rights of Persons with Disabilities Act, 2016 without any hassle or difficulty. The international conventions as well as the statutes governing their rights speak of barrier free access to rights and services. Without obtaining the certificate mentioned above, the disabled will be denied access to certain fundamental rights and facilities. Consequently, they cannot lead a quality life.”

The Court further observed, “The assessment process must be as simple as possible. It must not cause any difficulty or trauma or even the least burden to the individual concerned. I take judicial notice of the fact that bringing such persons to a congested place like the Government Hospital would trigger considerable stress and anxiety to them. One does not know what can trigger panic and anxiety.”

The Court upon above observations held, “It is clinically appropriate that assessment for issuing such certificates is done at their homes. I therefore hold that persons suffering from mental retardation or mental illness are entitled to have the assessment done at the place where they reside.”

The in this case held, “In this case, the assessment of the petitioner's son was already done in the premises of the second respondent Institute. The entries enclosed in the typed set of papers indicate that the petitioner's son had already been noted as suffering from mental retardation. Insisting that he should be produced again reeks of arbitrariness.”

The Court allowed the Writ Petition and made directions regarding the issuance of certificate, “I therefore direct the second respondent to issue a certificate certifying that the petitioner's son is suffering from permanent disability ie., mental retardation.”

The Court also suggested that the state government could even issue a standard protocol to cover cases of those who are suffering from other disabilities, particularly, motor related physical disabilities.

The Court while concluding the Judgment held, “When community certificates are received at doorstep, can the State not apply the same model in the case of persons with disability also? The bureaucracy of the Indian State is described as its steel frame. It must be malleable enough to reach out and address the needs of the last person.”

Laws protecting rights of disabled people

Article 14 of the Constitution of India guarantees that State shall not deny to any person equality before the law or the equal protection of laws.

Chapter V of the Mental Healthcare Act, 2017 sets out rights of persons with mental illness. Section 18(5)(d) of the Act states that the appropriate Government shall ensure that no person with mental illness (including children and older persons) shall be required to travel long distances to access mental health services and such services shall be available close to a place where a person with mental illness resides.

Section 10 of the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 states that one of the objects of the Trust shall be to facilitate the realization of equal opportunities, protection of rights and full participation of persons with disability and to do any other act which is incidental to the aforesaid object.

Section 3(1) of the Rights of Persons with Disabilities Act, 2016 states that appropriate Government shall ensure that the persons with disabilities enjoy the right to equality, life with dignity and respect for his or her integrity equally with others.

India is a party to the Convention on the Rights of Persons with Disabilities, 2006. Article 18 of the said Convention expects the States parties to ensure that the persons with disabilities are not deprived on the basis of disability of their ability to obtain, possess and utilize documentation of identification.

Declaration on the Rights of Mentally Retarded Persons, 1971 proclaims the necessity of protecting the rights and welfare of the physically and mentally disadvantaged.

Declaration on the Rights of Disabled Persons, 1975 also affirms the rights of disabled persons to services which enable them to develop their capabilities and skills to the maximum and will hasten the process of their social integration or reintegration.

The entire Judgment may be read here: 

 

Related:

Form Public Grievance Committee, submit vaccine plan for disabled and labour class: Allahabad HC

Guidelines for special arrangements for persons with disabilities and senior citizens at Vaccination Centres

Now, jail authorities deny GN Saibaba plastic water bottle!

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Don’t make mentally disabled person travel for assessment test: Madras HC to TN gov’t

HC also suggest that the government consider exempting those suffering from other disabilities also from appearing in person to obtain disability certificates

Madras High Court

On May 12, 2022, the Madras High Court’s single-judge bench of Justice G.R. Swaminathan, took a compassionate view of challenges faced by mentally challenged people in a verdict highlighting the right to live with dignity of mentally disabled persons in a case of T.R. Ramanathan v/s. State of Tamil Nadu & Anr. [Writ Petition No. 12540 of 2022].  

The Court held, “It is clinically appropriate that assessment for issuing such certificates is done at their homes. I therefore hold that persons suffering from mental retardation or mental illness are entitled to have the assessment done at the place where they reside.”

The Court further held, “Authorities shall not insist that a person suffering from mental retardation/ mental illness should be physically present in the premises of the certifying institution. But this need not stop the Government from going into the issue and issuing a standard protocol to cover cases of those who are suffering from other disabilities, particularly, motor related physical disabilities.”

Brief Background of the case

The Petitioner in this case is on the verge of turning ninety and has a 61-year-old who suffers from mental disability. This son can neither speak nor express himself, nor move about freely. He also has severe anxiety disorder.

A certificate dated February 29, 1992 was issued by a Dr. Shanti Chandramohan, Assistant Physician Government General Hospital, Madras Medical College stating that the son suffers from a permanent mentally disorder. This was not noted by the Institute of Mental Health, Kilpauk.

The Petitioner became a widower a few months ago, and his son-in-law also died a few years ago. He is entitled as pensioner since November 1992. The Petitioner’s son will be entitled to receive the benefits of this family pension after his death. To avail the said benefit, an entry will have to be made in the petitioner's pension book. For that, a disability certificate must be obtained.

The Petitioner's daughter approached the Institute of Mental Health at Kilpauk for obtaining such certificate. The Institute insisted that the disabled man be brought for assessment. Left with no other option, on April 26, 2022, the son was taken to the Institute of Mental Health, Kilpauk in an ambulance. A group of paramedical staff literally bundled him into the vehicle. He was assessed and it was noted that he was mentally retarded. But this was deemed insufficient for issuance of certificate.

It was again insisted that he should be brought to the premises of the second respondent for conducting few more tests. Since he was traumatised by what happened on April 26, 2022, he developed severe anxiety and became paranoid and whenever anybody entered his home, he held on to the bars of the window. Even though the Petitioner's daughter informed the concerned officials that it was not possible to bring him for further assessment, the personnel attached to the second respondent Institute declined to pay heed to the same. That led to filing of the present Writ Petition.

Court’s Observation and Judgment

The Court had observed, “Article 41 of the Constitution of India mandates that the State shall, within the limits of its economic capacity and development, make effective provision for securing the right to public assistance in cases of sickness and disablement and in other cases of undeserved want. In Jacob M.Puthuparambil and Ors.Vs. Kerala Water Authority (1991) 1 SCC 28, the Hon'ble Supreme Court held that the Court should interpret a given statute so as to advance Article 41.”

The Court further observed that in view of the decision of the Supreme Court in Sambhavana Vs. University of Delhi (2013) 14 SCC 781, it can be observed that the state has a special obligation to design a special approach depending upon the special needs of the concerned category of disabled.

The Court also observed, “The Government of Tamil Nadu has introduced a laudable scheme “Illam Thedi Kalvi” (Education at doorsteps). This model can very well be applied to the case on hand.”

The Court further observed, “The disabled persons who are obviously entitled to rights guaranteed under Article 21 of the Constitution of India are entitled to obtain a certificate under Section 58 of the Rights of Persons with Disabilities Act, 2016 without any hassle or difficulty. The international conventions as well as the statutes governing their rights speak of barrier free access to rights and services. Without obtaining the certificate mentioned above, the disabled will be denied access to certain fundamental rights and facilities. Consequently, they cannot lead a quality life.”

The Court further observed, “The assessment process must be as simple as possible. It must not cause any difficulty or trauma or even the least burden to the individual concerned. I take judicial notice of the fact that bringing such persons to a congested place like the Government Hospital would trigger considerable stress and anxiety to them. One does not know what can trigger panic and anxiety.”

The Court upon above observations held, “It is clinically appropriate that assessment for issuing such certificates is done at their homes. I therefore hold that persons suffering from mental retardation or mental illness are entitled to have the assessment done at the place where they reside.”

The in this case held, “In this case, the assessment of the petitioner's son was already done in the premises of the second respondent Institute. The entries enclosed in the typed set of papers indicate that the petitioner's son had already been noted as suffering from mental retardation. Insisting that he should be produced again reeks of arbitrariness.”

The Court allowed the Writ Petition and made directions regarding the issuance of certificate, “I therefore direct the second respondent to issue a certificate certifying that the petitioner's son is suffering from permanent disability ie., mental retardation.”

The Court also suggested that the state government could even issue a standard protocol to cover cases of those who are suffering from other disabilities, particularly, motor related physical disabilities.

The Court while concluding the Judgment held, “When community certificates are received at doorstep, can the State not apply the same model in the case of persons with disability also? The bureaucracy of the Indian State is described as its steel frame. It must be malleable enough to reach out and address the needs of the last person.”

Laws protecting rights of disabled people

Article 14 of the Constitution of India guarantees that State shall not deny to any person equality before the law or the equal protection of laws.

Chapter V of the Mental Healthcare Act, 2017 sets out rights of persons with mental illness. Section 18(5)(d) of the Act states that the appropriate Government shall ensure that no person with mental illness (including children and older persons) shall be required to travel long distances to access mental health services and such services shall be available close to a place where a person with mental illness resides.

Section 10 of the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 states that one of the objects of the Trust shall be to facilitate the realization of equal opportunities, protection of rights and full participation of persons with disability and to do any other act which is incidental to the aforesaid object.

Section 3(1) of the Rights of Persons with Disabilities Act, 2016 states that appropriate Government shall ensure that the persons with disabilities enjoy the right to equality, life with dignity and respect for his or her integrity equally with others.

India is a party to the Convention on the Rights of Persons with Disabilities, 2006. Article 18 of the said Convention expects the States parties to ensure that the persons with disabilities are not deprived on the basis of disability of their ability to obtain, possess and utilize documentation of identification.

Declaration on the Rights of Mentally Retarded Persons, 1971 proclaims the necessity of protecting the rights and welfare of the physically and mentally disadvantaged.

Declaration on the Rights of Disabled Persons, 1975 also affirms the rights of disabled persons to services which enable them to develop their capabilities and skills to the maximum and will hasten the process of their social integration or reintegration.

The entire Judgment may be read here: 

 

Related:

Form Public Grievance Committee, submit vaccine plan for disabled and labour class: Allahabad HC

Guidelines for special arrangements for persons with disabilities and senior citizens at Vaccination Centres

Now, jail authorities deny GN Saibaba plastic water bottle!

Dr. GN Saibaba hospitalised after his health deteriorates due to hunger strike

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