---------- Forwarded message ---------- From: Achal Bhagat <achalbha...@yahoo.co.in> Date: 26 November 2010 01:09 Subject: Open Letter to Ms. Sudha Kaul and Ms. Amita Dhanda To: Sudha Kaul <sudha.k...@gmail.com>, amitadha...@gmail.com Cc: syamal...@gmail.com, abid...@gmail.com, acmiin...@gmail.com, vandanab...@yahoo.com, vandana.gopiku...@thebanyan.org, Alok Sarin < aloksa...@gmail.com>, manderha...@gmail.com, Vaishnavi Jayakumar < vaishnavi.jayaku...@inclusiveindia.info>
Open Letter to Dr. Sudha Kaul and Ms. Amita Dhanda, I write to express to you the anguish of a large section of persons living with mental illness and their families whose aspirations have been betrayed by the working draft of the proposed Persons with Disabilities Act. We have waited with abated breath for this law and now we find that the proposed law does not even recognize the basic needs of survival of persons living with mental illness. In various formal and informal meetings that my colleagues from the disability sector/ mental health sector and I have had with you over the last year we have expressed our worry about the incompleteness of the process and partisan inclination of the process. We have been asked to trust and work in good faith. We now see a pursuit of ideology has taken over interpretation of UNCRPD in this proposed draft. Most intellectual debates have been dismissed patronisingly as our ‘existential anxieties’ or ‘thinking in old paradigm’. And when the pitch has increased to express the impatience, we have been the called the unruly civil society. We had hoped that the draft of the new law would assuage all the fears and prove us wrong. The proposed draft has proven our worst fears right. The legal consultant has failed to fulfil the expectations that the country had. The committee unfortunately has not even had the time to reflect on the evocatively worded but euphemistically circumstantial draft. We hope that it is as worried as we are about the draft. Our key worries on the first reading of the draft are the following and they can only be corrected by rewriting significant parts of the draft. • It is written as an elite urban centric document. The word rural appears twelve times in the draft but mostly as an afterthought. The conceptual framework of the law does not take in to account the needs and realities of a person living with disability in the rural India. • It is a document that does not determine the specific state responsibilities. While it acknowledges the rights, it gives no clear directions in form of legislated programming for the realization of these rights. • While it names many fancy structures as authorities it forgets that no government structure can function in isolation. The proposed law duplicates authorities by creating a District Level Commissions while not abolishing the Local level committees under the National Trust Act. The new law creates a new set of registered organizations and another Electoral College for Disability Rights Authority while keeping the Electoral College for the National Trust alive. The new law leaves the responsibility of human resource development to individual ministries without changing the role of RCI. There no link between the governance structures in the new law and the PRIs. There is no link between the DRA and the Commissioner’s office. • The new law in the detailing of the National Institute of Universal Design confuses the concept of Universal Design with the concept of Physical Accessibility. It goes against the definition of Universal Design in the convention, which call for the universal design not only of structures but processes. • It leaves the onus on the disabled person to seek support and to seek their entitlements. It does not specify how the state would fulfil its responsibilities beyond increasing awareness, setting the authorities in place and taking ‘suitable measures’. • While the Act sees legal capacity as a principle of the law yet while writing the chapters on Education, Health, Independent Living, Employment, Social Security it seems to go back to the assumption of incapacity by remaining silent on the specific measures that need to be taken to ensure the realization of these rights for person living with mental illness or persons with intellectual impairments. There is also a disproportionately lower number of jobs being reserved for persons living with mental illness, persons with intellectual impairments and autism. This too seems to be an assumption of incapacity. • The National Trust has been intentionally left out of this draft. We wonder if it should not be considered a conflict of interest. There seems to be an obvious need to sustain a parallel draft for the National Trust. • The way the legal capacity chapter has been written in the present draft is most definitely going to exclude many persons living with mental illness from all health care systems when they need them the most. It denies the existence of mental impairments in mental illness in pursuit of the belief that all of mental illness is social constructed. • It denies the possibility that a person living with mental illness or person living with Intellectual Impairments or a Person living with Autism may not be able to seek support or may not be take a decision even when all support is available. • Under the new Act Persons with Disability will have to seek support. Pray, how would persons with high support needs do so? The new law makes a grandiose declaration that the plenary guardianship is abolished with the passing of this law. Imagine, the day after this law becomes an Act, how would lives run while the academic exercises of deciding electoral colleges for the DRA, the Chairpersons, the District Commissions, the Action Plans, the suitable measures and all the rest of euphemisms and ‘do nothingisms’ gradually sort themselves out? And of course anyone who steps in and tries to do something for the disabled person can be reported against by any person walking on the street as violating this law and can be arrested. Is this the vision of the new paradigm? We wonder why the details of transition from plenary guardianship and details of ‘what if’ crisis situations have not been worked out. • While it will be easy for you to brush aside these arguments by calling us as supporters of the old paradigm (or calling me a psychiatrist), it is will be difficult to cite another country which has followed this ruthless approach to implementing legal capacity. The Convention itself has not ruled the possibility of substitution in certain situations, while it prefers supported decision-making. Why is the nuance not brought in to the Indian Law? • The new law proposes to criminalize institutional care without creating alternatives. Nearly 20,000 persons living with mental illness and another 20,000 persons living with intellectual impairments currently live in Institutions. There are no government run mental health services in nearly five hundred districts. There are no mental health services in nearly three hundred districts. Lakhs of people with mental illness have no support available to them except the acceptance of the family. There is no plan increase the quality of care in the Institutions. There is no specific plan to increase the community based mental health interventions and there is no plan to care for the persons living with mental illness who are homeless. The community support programs that do not exist today will not erupt spontaneously with the passing of the law. Lack of treatment also leads to denial of dignity. Lack of treatment also leads to lack of employment, furtherance of stigma, furtherance of the assumption of incapacity and dangerousness. Access to care is a key right of persons living with mental illness. Lack of care and treatment leads to loss of life and increased disability. There is enough and more evidence for all this. Yes, it is important to protect people from the rights violations that are also a reality. But one cannot be seen as oppositional to the other. The rights are indivisible. The key reasons why people living with mental illness and intellectual impairments get abandoned will continue to hound us for years. Just saying that Institutionalization is a form of violence does not unfortunately change anything for persons living with mental illness unless there is a legislated time bound process to create alternatives. • The new law proposes to criminalize the service provider and the family for providing treatment of persons living with mental illness even when (due to mental impairment) the person may be a risk to themselves or a clear and present danger to others. • The proposed draft does not address the issue of diminished criminal responsibility when the person with mental or intellectual impairment may not have understood the fact they may be committing a crime. • The proposed new law potentially criminalizes all the service providers including family by criminalizing neglect. We have heard and used the word ‘nightmares’ after the first reading of the draft. It is unfortunate that what could have moment of celebration is turning out to be a moment of mistrust and fear. We would still request the committee to constitute (or shall we say reconstitute) the legal panel, to review the work of the legal consultant. We would also request the committee to compare the proposed draft not with its opinions but with a set of parameters of UNCRPD and the use the Handbook of Parliamentarians as guidance. We would urge the committee to have a meeting with the members of the Mental Health sector to listen to our real worries. Please do not brush aside what is a matter of life and death as just patriarchal concern. We beseech to you not to send a stock ‘hum dekh rahe hain, aur age bhi dekhenge’ reply. With warm regards, Achal Bhagat *Director, * *SAARTHAK* *Development * Rights * Mental Health* Room F 18 - 20 2 Balbir Saxena Marg, Hauz Khas, New Delhi 110016 011-32517186 To unsubscribe send a message to accessindia-requ...@accessindia.org.in with the subject unsubscribe. 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