Monday, August 12, 2013

Punjab & Haryana HC reinstates employee with Cerebral Palsy

Dear Colleagues,

Punjab and Haryana High Court has quashed the sacking order issued by the District Judge Karnal against a Clerk with disability (Locomotor disability due to Cerebral Palsy).

Brief Facts

Is this matter, the petitioner - an educated and brilliant young man with disability had on his own merit cleared the recruitment test to the post of Clerk in the District & Sessions Court, Karnal, Haryana, India. The petitioner cleared written test,  general  knowledge  and  the proficiency  test  in  operation  of computers   and also the computer  practical  test  and personal interview.  The competent medical authority had also declared  the  petitioner  as  a case  of cerebral palsy (100% handicapped) and fit for office work under the handicapped category before joinning the government service. Thus out  of  the  71  advertised posts,  only 63 candidates were selected and the petitioner, as per his merit, was placed at Sr.No. 26. and accordingly appointed to the post of Clerk on 23.10.2010.

However, within two months of joining the District & Sessions Judge,  Karnal, vide an order dated 5.2.2011 terminated the services of the petitioner stating therein that  his services are no longer  required.   The stand taken by the respondent was that  the  services  of  the petitioner  have  been terminated as per the terms of his appointment  letter,  according to which the petitioner  was appointed purely on temporary basis and was kept on probation for a period of two years. As per Clause 4 of the  appointment  letter,  the  services of the petitioner  could  be terminated at any time without assigning any reason and without prior notice.  As the petitioner  was unable to perform any kind of  office work with his own hands and of  his own,  he being suffering from cerebral  palsy,  he could not  be continued in service.  As  per  the respondents,  petitioner  is unable  to  perform  any  work  on  the computer and, therefore, faced with this situation, the services of the petitioner  have  been dispensed  with  as  per  the  terms  of  his appointment  without  casting any stigma on him. The respondent also submitted that  the officials in the office of  District  and Sessions Judge have been helping the petitioner at  every step and at  every moment still he was unable to do any office work and, thus, respondent was left  with no option but  to take a decision to dispense with the services of the petitioner in the interest of office administration.

The Judgement

While referring to the Supreme Court judgment in Syed Bashir-ud-din Qadri's case, Justice Masih asserted that “such cases have to be handled with sensitivity and not with bureaucratic apathy". The Hon'ble SC in the above case had laid down that the beneficial piece of social  legislation is to enable persons with certain forms of disability to live a life of purpose and human dignity.  Such type of cases have to be handled with sensitivity and not with bureaucratic apathy and when person has been found to be fit and suitable for a post, which  has  been  identified  and  reserved  for  a  particular category, the employee cannot be terminated and efforts be made to provide a congenial  atmosphere to the said employee keeping in view his disability and mechanical orders should not be passed in a routine manner. 

The court concluded that the "petitioner may be slow in handling the computer but  could perform the duties on a computer and can be assigned such a task, which can be handed over to him in the office primarily relating to computer.  The detail  of  the Sections  where the work  is  done on computers,  has been given in the replication,  which indicates that there are  plenty  of  places  where  the  petitioner  can  easily  be accommodated where he can perform his duties as a Clerk in the light of his qualifications while keeping in view his capacity, capability and  competence.  With  same  support, encouragement  and cooperation, this Court is quite sure that the petitioner would be able to perform his duties and the object  of  the Disability Act  would be given effect to in true spirit." 

Click here for full Judgement: : CWP No. 3087 OF 2011 (Ritesh Sinha  VERSUS State of Haryana and others)    

Learnings from the judgement:

This case indicates the mindset of the authorities who attach incapacity to the disabilities. The residual abilities are not looked at. What is focussed on is what is lacking in the individual.  Despite a favourable order reinstating the petitioner, I as a disability rights activist find two major issues with the judgement:

(a) It is silent on the issue that despite clearing the test on his own merit and standing 26th in the order of merit out of 63 selected candidates, why was the petitioner adjusted against the disability quota. By adjusting him so, the respondents have taken away the employement opportunity from one prospective person with disability. And the worst.. it went without check! The Employer is happy having appointed one in the disability quota and the employee is least bothered against what quota he is getting in since his purpose is served. There is no accountability and checks to stop this menace! 

(b) The High Court did a blunder by calling the petitioner to be examined again with regard to his feasibility of  performing appropriate office job in the High Court itself and then assigning the Registrar (Administration) to check the performance & ascertain as to whether the petitioner was in a position to operate the computer, give appropriate commands etc. and submit a report. The court in this case couldn't have taken over the duties of the selelection committee who had already found him fit for being appointed on the said post of clerk.

The acknowledgements

Congratulations to my colleague Adv Veena Kumari of HRLN Chandigarh who took up this case and ensured that it reached its logical conclusion.  

Media Coverage by the Tribune


Saurabh Malik
Tribune News Service

Chandigarh, August 6
In a first, the Punjab and Haryana High Court took upon itself the task of testing the abilities of a candidate suffering from spastic cerebral palsy. It has also called upon the employers to shed the “mechanical approach” and appreciate the situation of a “disabled person” from the human rights perspective.

The call by Justice Augustine George Masih came on a petition filed by Ritesh Sinha against Haryana and other respondents. Suffering from spastic cerebral palsy, he had challenged the order passed by Karnal District and Sessions Judge on February 5, 2011, terminating his services as a clerk.

Challenging the orders, counsel for the petitioner Veena Kumari submitted that the respondents “were insensitive to the difficulties a disabled person is faced with”.

During the course of hearing, the Karnal District and Sessions Judge submitted a report stating that the petitioner could not even start a computer. He could not even move a paper from one place to another. After the petitioner’s counsel disputed the report, the High Court, vide a September 28, 2012, order directed that “it would be appropriate and also in the interest of the petitioner himself to be examined with regard to his feasibility of performing an appropriate office job in the High Court itself”.

In his report, Harnam Singh Thakur, High Court Registrar (Administration), made it clear that the petitioner could do some work on the computer, though slowly.

Referring to the Supreme Court judgment in Syed Bashir-ud-din Qadri's case, Justice Masih asserted that “such cases have to be handled with sensitivity and not with bureaucratic apathy….

Quashing the order, Justice Masih added: “With support, encouragement and cooperation, this court is quite sure that the petitioner would be able to perform his duties and the object of the Disability Act would be given effect to in true spirit”.

Monday, August 5, 2013

Delhi HC questions MSJE why disabled can't function as surgeon

Court questions 3% reservation for differently-abled MBBS degree holders

Sunday, Jul 28, 2013, 12:59 IST | Place: Delhi | Agency: DNA

Ayesha Arvind

The Delhi High Court has questioned the 3% reservation for differently-abled persons holding MBBS degree only in non-surgical posts. While hearing a plea pertaining to such an appointment, the Court asked, "Does the Centre feel that differently-abled persons with valid MBBS degrees are unfit to perform their duties as doctors in surgical procedures?" The Court has sought a clarification from the ministry of social justice and empowerment in this regard.

A bench of Justices Pradip Nandrajog and V Kameswar Rao has also directed the chief commissioner for persons with disabilities to appear in the Court on Monday. The Court order follows a plea in which an ENT surgeon has challenged the appointment of an orthopedically-handicapped (OPH) candidate for the same post in AIIMS for which he too had applied.

The surgeon, Dilip Samal, had applied for the post of senior resident/demonstrator at AIIMS in July last year under the OBC category. He challenged the appointment of an OPH candidate after his RTI query revealed that the selected candidate had scored less than the qualifying marks in written test. Samal was later informed by the AIIMS authorities that as per procedure those who qualify under the OPH category are adjusted in the respective category, irrespective of the marks and merits in the entrance exam.

Samal then approached the Central Administrative Tribunal (CAT) for relief. In January this year, the CAT had set aside the selection of the OPH candidate Mohammad Mubashshirul Haq. It had ruled that the AIIMS had not notified any relaxed standards of suitability for the OPH candidates while inviting applications or any time thereafter. AIIMS, in turn, challenged CAT’s ruling before the High Court.

The Court took note of the fact that Section 32 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and the DoPT guidelines mandate that authorities first identify posts to be reserved in medical facilities for persons with disabilities and specifically earmark them.

And that these seats cannot be adjusted with vacancies under other categories.

“Two issues arise out of the plea. The first being whether it is mandatory in law to identify seats reserved for differently-abled persons in medical specialities when applicants are invited from eligible candidates. The other issue which arises is a directive issued by the ministry of social justice and empowerment, government of India, requiring reservation in the medical field only in non-surgical posts,” the Court said.

“It is the second issue which troubles us more than the first. Prima facie, we find it strange that the ministry of social justice and empowerment would be of the opinion that differently-abled persons per se would be unfit to perform duties as a doctor in a discipline which requires surgical procedures to be performed,” it said.

Hospital refused Sign Language Interpretor - sued for disability discrimination under ADA

Department of Justice Files Lawsuit Against Vero Beach, Fla. Doctor and Medical Practice for Retaliating Against Deaf Couple

Monday, July 29, 2013

The Department of Justice announced today that it has filed a lawsuit against Dr. Hal Brown and Primary Care of the Treasure Coast of Vero Beach, Fla. (PCTC), alleging that the doctor and the medical practice violated the Americans with Disabilities Act by discriminating against Susan and James Liese, who are deaf. The complaint alleges that the doctor and the practice violated the ADA by retaliating against Mr. and Mrs. Liese because they engaged in activities protected under the act.  The suit was filed in the U.S. District Court for the Southern District of Florida in Ft. Pierce.


According to the Justice Department’s complaint, the doctor and medical practice terminated Mr. and Mrs. Liese as patients because the couple pursued ADA claims against a hospital for not providing effective communication during an emergency surgery.  The hospital is located next door to and affiliated with PCTC.  The complaint alleges that the Lieses threatened the hospital with an ADA suit based on failure to provide sign language interpreter services, and upon learning of the lawsuit, PCTC and Dr. Brown, who was the Liese’s primary doctor at PCTC, immediately terminated the Lieses as patients.

“The Department of Justice is committed to enforcing the provisions of the ADA that protect an individual from retaliation when he or she opposes disability discrimination and prohibit interference with an individual in the exercise of rights granted by the ADA,” said Jocelyn Samuels, Acting Assistant Attorney General for the Civil Rights Division.  “A person cannot be terminated as a patient because he or she asserts the right to effective communication at a hospital.”

The enforcement of the ADA is a top priority of the Justice Department’s Civil Rights Division.  The ADA prohibits retaliation against an individual because they oppose an act that is unlawful under the ADA and because they made a charge, testified, assisted or participated in any manner in an investigation, proceeding or hearing under the ADA.  The ADA also makes it unlawful to coerce, intimidate, threaten or interfere with any individual exercising their rights protected by the ADA.  The department’s Civil Rights Division enforces the ADA, which authorizes the Attorney General to investigate allegations of discrimination based upon disability. Visit www.justice.gov/crt and www.ada.gov to learn more about the ADA and other laws enforced by the Civil Rights Division.

Mechanical and Rigid implementation of Disabilities Act is against the legislative intent

Dear Colleagues,

The cases as below wherein the courts as well as lawyers fail to appreciate the basic intention of the legislature behind the benevolent Persons with Disabilities Act 1995 are indicative of the ignorance in the legal fraternity on the rights of the persons with disabilities.

The DoPT memorandum dated 29 Dec 2005 categorically states in para 22 as under:
22. RELAXATION OF STANDARD OF SUITABILITY: If sufficient number of persons with disabilities are not available on the basis of the general standard to fill all the vacancies reserved for them, candidates belonging to this category may be selected on relaxed standard to fill up the remaining vacancies reserved for
them provided they are not found unfit for such post or posts. Thus, to the extent the number of vacancies reserved for persons with disabilities cannot be filled on the basis of general standards, candidates belonging to this category may be taken by relaxing the standards to make up the deficiency in the reserved quota subject to the fitness of these candidates for appointment to the post / posts in question. 
However, rigid cut off marks as 90% would defeat the very purpose of the Disabilities Act and the courts must look at the legislative intent before dismissing such petitions mechanically. An appeal against this order must be preferred in the next superior court to set the things right.

Here is the news coverage from Indian Express 16 Jul 2013


No quota job if cut-off isn't met

The Madras High Court on Monday rejected a plea from K Kumaravelu of Marudhur South village in Nagapattinam district, praying for a direction to Teacher Recruitment Board (TRB) to appoint him as a secondary grade teacher under the priority quota for physically-disabled persons.

After passing the higher secondary examination, Kumaravelu, belonging to a backward class community, completed diploma in teacher education, in 2009. During his school days, he met with an accident and his right leg below the knee had been amputated.

He was issued a certificate by the Joint Director, Medical and Rural Health and Family Welfare in Nagai, fixing his disability at 60 per cent. He also appeared for the TET and obtained 83 per cent marks.

The petitioner contended that against the total vacancy of 12,000 posts, 3 per cent of 360 posts had to be earmarked for the disabled under Sec 33 of the Person with Disability Act, 1995.

Very few candidates were selected under this section. Hence, he must be given accommodation, after giving relaxation in the requirement of 90 per cent marks, he pleaded.

Additional Government Pleader P Sanjay Gandhi submitted that the minimum eligibility marks under the Act was 90 per cent.

No person could claim any relaxation in the matter, he added.

Disabilities can't be restricted to those in the PwD Act 1995

Dear Colleages,

The present medical model of disability in the Disability Act and as understood by the Courts has some serious shortcomings. The etiology based labels or medical condition based labels are counterproductive so far as the constitutional mandate of ensuring equality and non-discrimination is concerned. The benefits of schemes meant for social justice can not be just restricted to persons whose condition or type of disability reflects in the law.

What is needed is to look at the restrictions that the person faces in the community due to the particular condition. The forumula that Amended Americans with Disabilities Act (came in to force on Jan 01, 2009) adopts is quite reasonable. It accepts you for the disability benefits if :

(a) If you have a physical or mental problem that substantially limits one or more of your “major life activities”.
(b) You have a record of having had such a problem in the past.
(c) Other people think you have such a problem, even if you do not actually have it.

What are major life activities

Some of the “major life activities” covered by ADA include but are not limited to caring for yourself, doing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.

The amended ADA has made some major changes to the way the definition of disability had been interpreted under ADA in the past. The 2008 Amendments Act includes major body functions, including but not limited to functions of the immune system, normal cell growth, digestive, bowel, bladder, brain and nervous system, respiratory, circulatory, endocrine, and reproductive systems. These changes can help people with cancer, because in the past they often had a hard time meeting the definition of disability.

Bombay High Court sets a precedent

The Bombay HC has in the below case issued notices to the Coordination Committees  - both Centre and State - established under the Persons with Disabilities (Equal opportunities, proteciton of Rights and full participation) Act 1995 Central Govt.to respond to a similar case wherein the petitioner Vinod Tambe - a personal rehabilitated after cancer  -   has sought benefits available to persons with disabities under the Act.

Hon'ble Chief Justice Mohit Shah has been known to be a very sensitive judge so far as  matter related to those with disabilities and marginalised segments are concerned. He has been known to take suo moto notice of matters affecting the rights of disabled while he was with Gujarat High Court and championed the cause of persons with disabilities.

Disabilities Act not superseding but supplementing

The Maharasthra Government had through a circular issued by the director of employment exchange on November 21, 1983, instructed all district employment officers to register cancer-cured persons as handicapped persons. And the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 being a beneficial legislation only supplemented what existed before and by its enactment, no pre-existing right  could be taken away by the state in such a blatant manner. Therefore, even if if caner-cured is not included in the medical definitions of the Disabilities Act, the said category continues to get the benefits, technically.

Other unreported cases

I personally know of a case in Valsad, Gujarat where a gentleman met with a serious car accident during which a metal rod of the car entered his body from a little lower than the urinal part on the front side of the body and came out from the spinal cord i.e. back side of his body thereby tearing his body and damaging the sphincter, anus, rectum and the spinal cord. He was somehow saved but with a colostomy. 

The Disability Certificate granted by Civil Hospital Valsad says he is a case of "Permanent Colostomy  + L1 Vertebra Fracture (Old)" and degree of disability is quanitified as "66%" .  

He sought benefits of Tax Concession to buy an adapted car available to persons with Disabiliites. However, the Government authorities refused him the benefit saying that he is not a person with disability according to the Persons with Disabilities Act 1995 since he is not suffering from blindness, low vision, mental illness, mental retardation, hearing impairment or locomotor impairment! This is despite that fact that the gentleman has no voluntary control over his stools and has problems in independent mobility.

Lessons

Even the draft of the new Rights of Persons with Disabilities Bill 2012 which is to replace the existing Disabilities Act 1995 doesn't address this issue and still revolves around the etiology and types of disabilities without looking at the effect of the disability on the normal living of the person affected and the accommodations required by the person to be able to functional on an equal basis with others to ensure his fundamental right of equality to him. We need to move beyond types of impairment to the effects of the impairment the person faces in terms of disabilities while interacting with the social and environmental barriers and derive the accommodations that the person may require. 

The amended Americans with Disabilities Act (ADA) even recognises a disability which may not be actually there but may be perceived by others in addition to the major body functions, including but not limited to functions of the immune system, normal cell growth, digestive, bowel, bladder, brain and nervous system, respiratory, circulatory, endocrine, and reproductive systems. 

We seriously need to consider this before the present bill gets passed in the present form. Below is the news coverage on Bombay High Court admitting a case of  person recovered from Cancer with residual impairments/ disabilities.

TREAT CANCER - CURED AS DISABLED: PLEA IN COURT
Rosy Sequeira, TNN | Aug 5, 2013, 01.40 AM IST

MUMBAI: The Bombay high court has sought responses from the central and state coordination committees for persons with disabilities after a teacher cured of cancer approached it, demanding the same rights granted to disabled people. 

Solapur resident Vinod Tambe was diagnosed with blood cancer in 1977 at the age of seven. He was treated at Tata Memorial Hospital, and on March 16, 2005, issued a certificate by Chhatrapati Shivaji Maharaj Central Hospital in Solapur declaring him "cancer-cured handicap". Still, in spite of this, Tambe found that he was not allowed to access facilities for handicapped people. The primary school teacher subsequently moved court. 

Tambe is seeking the benefits accorded to disabled persons in healthcare, public transportation, education and employment. "The government should be considerate towards someone who has gone to the doorsteps of death and returned. Even though I am cured I still go through body pain. I am not like a normal person," he said. 

Tambe's advocate M S Karnik, during a hearing on July 12, pointed out that a circular issued by the director of employment exchange on November 21, 1983, instructed all district employment officers to register cancer-cured persons as handicapped persons. 

But the Maharashtra government maintains that the circular was superseded by the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. The definitions of disabilities listed in the act do not cover Tambe's case, it says. 

Karnik argued that the authorities erred in applying a narrow definition of the term "disability": "A person who has suffered from blood cancer even after getting cured does suffer from disabilities arising from weakness of the bones, joints or muscles, leading to substantial restriction of the movement of limbs." Karnik added that Tambe's case can be classified under locomotor disability, which is recognised under the 1995 act. 

The advocate contended that various additional forms of disabilities should be covered under the act and the Right of Persons with Disabilities Bill, 2012. Because of the current narrow definitions, he said, many people are getting deprived of disability benefits. 

Agreeing with him, a division bench of Chief Justice Mohit Shah and Justice M S Sanklecha gave the instance of the rare genetic disorder Hunter's syndrome. In this, an enzyme the body needs is missing or insufficiently generated, the judges said, leading to progressive damage, affecting development and organ function. 

Karnik said among the responsibilities of the central and state coordination committees is to continuously evolve policies to solve the problems faced by disabled people and to advise Central and state governments. The judges issued notices to the committees and posted the next hearing on August 7.

MAKING A CASE

THE PETITIONER

Vinod Tambe was diagnosed with blood cancer in 1977 and treated at Tata Memorial Hospital. In 2005, he was issued a certificate by Chhatrapati Shivaji Maharaj Central Hospital in Solapur declaring him 'cancer-cured handicap'

THE PLEA

Cancer survivors should be granted the rights given to disabled people

Disabilities Under Right of Persons with Disabilities Bill, 2012

1) Autism spectrum disorder 2) Blindness 3) Cerebral palsy 4) Chronic neurological conditions 5) Deafblindness 6) Haemophilia 7) Hearing impairment 8) Intellectual disability 9) Leprosy cured 10) Locomotor disability 11) Low vision 12) Mental illness 13) Muscular dystrophy 14) Multiple sclerosis 15) Specific learning disability 16) Speech and language disability 17) Thalassaemia 18) Multiple disabilities (two or more disabilities listed as one to 17 occurring in a person at the same time)

Disabilities Defined Under Persons with Disabilities Act, 1995

1) Blindness 2) Low vision 3) Leprosy-cured 4) Hearing impairment 5) Locomotor disability 6) Mental retardation 7) Mental illness

Times View


The government should treat such cases with utmost sympathy instead of going purely by the rulebook. And, if need be, rules should change to provide relief to people in distress. The court has done the right thing by indicating there may be a need to take a fresh look at the law.





Colourblindness no ground for denying promotion - Delhi High Court

Expressing displeasure over the central government's inaction, the Delhi High Court has directed the authorities to treat CRPF personnel with colour blindness on par with others for promotion.

A bench of Justice Gita Mittal and Justice Deepa Sharma said in a recent order that the authorities "have proceeded arbitrarily" in the cases of the colour blind personnel compelling them to repeatedly approach the court.

Earlier, the court decided the issue relating to colour blindness in serving Central Reserve Police Force (CRPF) whose colour blindness was discovered at the time of medical examination for promotion.

The court said that such personnel "would be entitled to full benefits of promotions as is extended to those who do not suffer from colour blindness".

However, despite "clear directions of the court, the authorities were not only refusing promotion but were proceeding to board out such personnel who were discovered to be suffering from colour blindness".

The court said the authorities had "miserably" failed to abide by the specific directives of the court.

The observations of the court came on the petition of Suresh Ram, a trooper whose promotion was stalled following the discovery that he was colour blind.

The court directed the authorities to promoted Ram from the rank of constable to head constable with all benefits, including seniority.




Thursday, August 1, 2013

British Appeals Court rejects Euthanasia sought by two severely disabled men



Dear Friends,

A UK Court of Appeal ruled unanimously against two severely disabled men who argued that they had the right to die. One of them, Paul Lamb, said he was “hoping for a humane and dignified end” after he was severely paralyzed in a car accident.  The other pettioner died during the course of hearinng. Now Paul  along wih the widow of the other petitioner are planning to approach the Supreme Court.

In Europe, euthanasia is allowed in Belgium, the Netherlands, and Luxembourg. Assisted suicide is usually for people who have at least some capacity to kill themselves, perhaps by drinking a lethal beverage or taking a fatal dose of drugs. It is legal in Switzerland, the only European country that allows foreigners to travel there to die.

UNITED KINGDOM OUT NO SALES NO ARCHIVE PHOTOGRAPH CAN NOT BE STORED OR USED FOR MORE THAN 14 DAYS AFTER THE DAY OF TRANSMISSION
Paul Lamb, who was paralyzed in a car accident, lies in a bed at
his home in Leeds, northern England (courtesy. nydailynews.com)
The British appeals court upheld a law against euthanasia in rejecting appeals from two severely disabled men who argued that doctors should be allowed to legally kill them. 

The two men - one of whom died of pneumonia last year - claimed their right to "private and family life" as guaranteed by the European Convention on Human Rights was being violated since they were not allowed to choose how and when they wanted to die. 

In a judgment issued on Wednesday, the Court of Appeal acknowledged the current law interferes with that right but ruled the ban on euthanasia is justified. It upheld a decision by the High Court last year that any changes to the euthanasia law must be made by politicians, not judges. 

In a unanimous ruling, the judges said the two men had "permanent and catastrophic physical disabilities" but said the issue of euthanasia "raises profoundly sensitive questions about the nature of our society." The judges wrote that "Parliament represents the conscience of the nation" and said the court had no jurisdiction to challenge the legal ban on euthanasia. 

"I am absolutely gutted," said Paul Lamb, one of the men involved, who was severely paralyzed after a car accident. 

"I was hoping for a humane and dignified end," Lamb said in a statement. "This judgment does not give me that." 

Lamb said he would carry on with the legal fight for euthanasia. His lawyer said they were considering options for appealing the case to the Supreme Court, together with the widow of the other man in the case, Tony Nicklinson. 

In a related case, the court ruled that an appeal by another disabled man to clarify who will be allowed to help people commit suicide, should be allowed. At the moment, the Crown Prosecution Service does not prosecute close family and friends if they help loved ones travel abroad to commit suicide as long as they act in good faith. 

There is no such provision for doctors or nurses, for whom it is illegal to help or even provide medical records for patients if they suspect they may want to go abroad for assisted dying. Lawyers for a man known only as Martin argued the policy was "defective" in failing to outline cases where health care professionals might be allowed to help their patients die. Martin's family wants no involvement in his suicide. 

In its ruling, the court said that while it was impossible to guarantee immunity for a health care professional who helps someone commit suicide, the current policy should be amended to be more precise. 

Keir Starmer, director of public prosecutions, said it would be sensible to have the advice of the Supreme Court before any amendments are made to the guidelines. His office is appealing the decision to the Supreme Court. 

Wednesday, July 24, 2013

Lawsuit against State of Florida for unnecessary segretation of disabled in institutions

Dear Colleagues,

Children have a right to grow up with their families, among their friends and in their own ‎communities‬ as per US Supreme Court’s decision in ‪‎Olmstead‬ v. L.C. The judgement requires states to eliminate unnecessary ‪‎segregation‬ or ‪‎institutionalisation‬ of persons with ‪‎disabilities‬. 

On finding ‎violations‬ that are serious, systemic and ongoing and which require comprehensive relief for children and their families, US Justice Department has filed a lawsuit against the State of Florida alleging that the state is in violation of the Americans with Disabilities Act (ADA) in its administration of its service system for children with significant medical needs, resulting in nearly 200 children with disabilities being unnecessarily segregated in nursing facilities when they could be served in their family homes or other ‎communitybased‬ settings! 

Here is detailed press release:


The Justice Department announced today that it has filed a lawsuit against the state of Florida alleging the state is in violation of the Americans with Disabilities Act (ADA) in its administration of its service system for children with significant medical needs, resulting in nearly 200 children with disabilities being unnecessarily segregated in nursing facilities when they could be served in their family homes or other community-based settings.  The lawsuit, filed in federal district court in Fort Lauderdale, Fla., further alleges that the state’s policies and practices place other children with significant medical needs in the community at serious risk of institutionalization in nursing facilities.  The ADA and the Supreme Court’s decision in Olmstead v. L.C. require states to eliminate unnecessary segregation of persons with disabilities.  The department’s complaint seeks declaratory and injunctive relief, as well as compensatory damages for affected children.

In September of last year, the department issued an extensive findings letter, notifying the state that it is in violation of the ADA.  The letter found that the state’s failure to provide access to necessary community services and supports was leading to children with significant medical needs being unnecessarily institutionalized in, or being placed at serious risk of entering nursing facilities.  The letter identified the numerous ways in which state policies and practices have limited the availability of access to medically necessary in-home services for children with significant medical needs.  Additionally, the state’s screening and transition planning processes have been plagued with deficiencies.  Some children have spent years in a nursing facility before receiving screening required under federal law to determine whether they actually need to be in a nursing facility.

As a result of the state’s actions and inaction, the state has forced some families to face the cruel choice of fearing for their child’s life at home or placing their child in a nursing facility.  In one instance, the state cut one child’s in-home health care in half.  Her family could not safely provide care themselves to make up for this reduction in services, and they felt they had no choice but to place her in a nursing home.  Another child who entered a nursing facility as a young child spent almost six years in a facility before the state completed her federally mandated screening.

“Florida must ensure that children with significant medical needs are not isolated in nursing facilities, away from their families and communities,” said Eve Hill, Deputy Assistant Attorney General for the Civil Rights Division.  “Children have a right to grow up with their families, among their friends and in their own communities.  This is the promise of the ADA’s integration mandate as articulated by the Supreme Court in Olmstead.  The violations the department has identified are serious, systemic and ongoing and require comprehensive relief for these children and their families.” 

Since late 2012, the department has met with Florida officials on numerous occasions in an attempt to resolve the violations identified in the findings letter cooperatively.  While the state has altered some policies that have contributed to the unnecessary institutionalization of children, ongoing violations remain.  Nearly two hundred children remain in nursing facilities.  Deficient transition planning processes, lengthy waiting lists for community-based services and a lack of sufficient community-based alternatives persist.  The department has therefore determined that judicial action is necessary to ensure that the civil rights of Florida’s children are protected.

The ADA prohibits discrimination on the basis of disability by public entities, including state and local governments.    The ADA requires public entities to ensure that individuals with disabilities are provided services in the most integrated setting appropriate to their needs. The department’s Civil Rights Division enforces the ADA, which authorizes the Attorney General to investigate allegations of discrimination based upon disability and to conduct compliance reviews regarding the programs and services offered by public entities. 

Tuesday, July 23, 2013

HC orders exemplery damages to child acquiring disability due to electrocution

Dear Colleagues,

In this unique case wherein a toddler was electrocuted due to negligence of Uttar Haryana Bijli Vitran Nigam (UHBVN) and lost his both arms and one leg with severe burn injuries, the Punjab and Haryana High Court took an unprecedented step of exercising its extraordinary jurisdiction under Article 226 of the Constitution and awarded the child 'exemplary damages' -Rs 62 lakh and litigation costs in addition to all medical costs, including those on prosthetics and future medicinal advances like stem cell therapy, until he is 21.

Breaking from the confines of the Victims Compensation Scheme brought about through an amendment to the Criminal Procedure Code (CrPC 357A) in 2008, the Hon'ble Judge not only saved the toddler Raman and his father the vagaries of prolonged civil litigation but may have also opened doors for other similarly placed victims for whom such remedial compensation could ensure survival. This precedent may greatly help victims of rape, human traffickking, kidnapping, child abuse and acid attacks, where protracted trials are often tedious and cumbersome. The heart touching coverage by India Today below:

Asit Jolly, Friday, July 19, 2013 | 17:21 IST

The animated antics of Chhota Bheem and Doraemon never fail to delight him. And he almost stops breathing in bated anticipation every time Mahendra Singh Dhoni lunges to stump a batsman. Potato wafers, Pepsi and Maggi noodles make for his dream meal. In fact the last thing on five-and-a-half-year-old Raman Swami's mind is the fact that he is missing both arms and his left leg.

Raman (left) with sister Khushi.
November 3, 2011, was the last time Raman used his limbs, running and tripping all the way back from nursery school to his home in Haryana's Sanauli Khurd village. Like other afternoons, he quickly ate lunch before bounding up the narrow stairwell to the roof, his favourite spot in the house. Minutes later, a neighbour rushed in screaming: "Raman ko bijli ne pakkad liya (Raman has been electrocuted)! The forever-curious toddler lay burnt, bleeding and unconscious in the neighbour's house, 15 feet from the spot he last stood-thrown by an 11,000 volt power line, installed by state-owned power utility Uttar Haryana Bijli Vitran Nigam (UHBVN), just two feet above the roof.

On June 27, 2013, twenty months after his life-changing encounter, the Punjab & Haryana High Court stepped in as Raman's saviour. Justice Rajiv Narain Raina took the unprecedented step of exercising his extraordinary jurisdiction under Article 226 of the Constitution in awarding the child 'exemplary damages'-Rs 62 lakh and litigation costs in addition to all medical costs, including those on prosthetics and future medicinal advances like stem cell therapy, until Raman is 21.

Breaking from the confines of the Victims Compensation Scheme brought about through an amendment to the Criminal Procedure Code (CRPC357A) in 2008, Justice Raina not only saved Raman and his father the vagaries of prolonged civil litigation but may have also opened doors for other similarly placed victims for whom such remedial compensation could ensure survival. "The judge has created a precedent for rape victims, sufferers of acid attacks, victims of human trafficking, child abuse and kidnapping where protracted trials can be tedious and cumbersome, says Chandigarh lawyer Anil Malhotra, who advised the court as amicus curiae in the case.

After more than a month at the Burn Injuries Unit of Delhi's Safdarjung Hospital, Raman came home, definitely tired and wondering why he could not bring himself to scratch at the infernal itch on his ear lobe. "They saved his life and I cannot stop thanking them for that, but I got only half my son back, says Manoj Sharma, 42, Raman's inconsolable father who runs an autorickshaw and tractor spares shop on the Panipat Road heading out of Sanauli Khurd. "My boy wanted wings to fly, instead they took away his limbs, he says with eyes brimming over at the horrifying memory of seeing portions of his son's charred fists still smoking on the 'killer cable'.

The promise of money, which will be held in two bank accounts until Raman turns 21, has changed little in Sharma's bleak existence. The poor shopkeeper must contend with the unsettling prospect of paying back nearly Rs 15 lakh he borrowed for his son's treatment over the past 20 months. But more than the money, it bothers him that the court "failed to punish even one of those responsible for Raman's condition.

Sharma told the court that after objecting to the proximity of the 11,000 volt power line when it was first installed almost touching his roof in 2006, he made several verbal and at least one written complaint to uhbvn officials over the years. "I had a foreboding that something terrible would happen. They did nothing. And our whole world fell apart, he says.

Up in the two-room house above his father's ramshackle auto parts shop, little Raman is quite oblivious to the commotion over the high court's verdict and compensation package. A trifle shy at first, he quickly warms up to the presence of new visitors. Ten short minutes later you forget the boy has just one 'good' limb.

"He has become surprisingly self-sufficient, his mother Beena, 38, says with a conflicting mix of doting pride and apprehension about her only son's future. Raman incredulously employs his five remaining toes and a combination of muscles from his jaws, chin, torso and lower back to write, give himself a bath, switch to Doraemon on tv and even use the video app on his father's Nokia touchscreen phone to shoot movies with a steadier 'right foot' than most veteran cameramen.

"Itches are my biggest problem, he says with a sheepish smile. "But didi (sister) is always by my side. Raman uses a pen held between his toes to indicate the precise spot on his back to older sister Khushi, 9.

Can he use his foot to draw? "Sure I can, he unhesitatingly replies, proceeding immediately to sketch a face using chalk on a slate. The picture is done but Raman isn't happy: "That does not look like you, he says. "I will practise and the next time you come I shall draw you better", he smiles.

A year before he touched the wire on the roof, he broke his right arm in a fall. "When he asks, I tell him his leg and arms will grow back just like his arm healed after the fracture, says Beena. "He is already suffering and I cannot bear to tell him the truth, she says.

"Don't go close to the wire... it will hurt you, the boy cautions anyone going up to the roof. And yes, a fortnight after the path-breaking high court verdict, uhbvn's offending power line still looms over the Sharma home.

Raman says he wants to grow up to be a Dhoni or a Sehwag. Looking down at his absent limbs he quickly assures you: "Don't you worry, they will grow back. My mother said so. And my mother never lies.

And so what if his arms haven't 'grown back', the little fellow can give you a farewell jhappi (hug) like none other: Simply putting his beautiful head over your shoulder and sighing. You come away with the feeling of being held tightly in his 'arms'.

Source: India Today

Tuesday, July 2, 2013

Judges turn the tables on Husband seeking divorce on grounds of Mental illness of wife


Dear Colleagues,

Striking a gender equality note, the Supreme Court turned the tables and asked the husband whether it would have granted divorce to a woman from her husband, who on developing some mental disorder had become completely dependent on her, if she promised a huge sum as permanent alimony! Quite an interesting read and also indicates the increasing trend of more matrimonial cases reaching courts seeking divorce in name of mental ilnesses of the spouse... (read wives with unsound mind) ! 

SC strikes gender equality note in grant of divorce

Dhananjay Mahapatra, TNN | Jul 2, 2013, 04.28 AM IST

NEW DELHI: Irretrievable breakdown of marriage, coupled with promise of large amount of money as permanent alimony, has been cited by rich and powerful men to seek divorce from their wives when all was not well in the marital relationship. 

Striking a gender equality note, the Supreme Court on Monday turned the tables and asked whether it would have granted divorce to a woman from her husband, who on developing some mental disorder had become completely dependent on her, if she promised a huge sum as permanent alimony. 

The case related to Darshan Gupta and Radhika Gupta, who married when they were barely out of their teens in 1997. Radhika's first pregnancy was terminated due to medical reasons. The second pregnancy was again a very complicated one and the child had to be delivered through Caesarian section. She remained unconscious for a long time and developed serious mental disorder. The child died eight days after birth. 

Though she was treated in reputed hospitals, she allegedly remained mentally ill. The husband claimed separation from her since 2002, breakdown of marriage and offered a large sum of money as permanent alimony to seek termination of marriage. 

A bench of Justices P Sathasivam and J S Khehar rejected the husband's plea and wondered whether a similar request by a woman would have been entertained by the apex court for grant of divorce from a husband who developed some mental disorder. 

"In the context of doing justice, it was suggested that the appellant (husband) would be ready and willing to pay the respondent (wife) whatever was considered appropriate by the Supreme Court. We are informed that the appellant is financially well to do," the bench said. 

"We would, in our endeavour to determine the issue in hand, examine the matter by reversing the roles of the parties. We will examine the matter as if the wife had approached the family court seeking divorce, on the ground that her husband had suffered brain damage leading to cognitive deficiencies. Yet, despite the said deficiencies, his working memory had returned to 'near normal' after treatment. And his mental condition was such that it would not have any effect on his matrimonial obligations," the bench added. 

"And the wife's family is agreeable to pay an amount to be determined by this court (just as the husband Darshan Gupta has offered), so as to enable their daughter to break away and find a more suitable match. Should she have been granted freedom from her matrimonial ties, in the given facts, in order to do complete justice to the parties? We would ask ourselves whether the husband would have accepted such a plea, in the facts denoted above," it further said. 

"In such a situation, if this court had, in exercise of its jurisdiction under Article 142 of the Constitution of India, granted compensation to the husband, and had dissolved his marriage on the pretext of doing complete justice between the parties, would the same be acceptable to the husband? We have no doubt in our mind that on a reversal of roles, the husband, without any fault of his own, would have never accepted as just the dissolution of his matrimonial ties, even if the couple had been separated for a duration, as is the case in hand," Justice Khehar, while authoring the judgment for the bench, said.

Source: Times of India