Dear Shri Bahshy, As usual a very thorough and informative sharing of your participation in NAAJMI meeting. I also was invited to NAAJMI meeting which is taking place in Bangalore today and tomorrow.. I chose not to attend because of the following reasons. 1. Disability code. The following code is circulated and which very clearly gives special status to the National trust act and also Mental illness were not included. Memorandum on Disability Code The Background In the explanatory note to the Working Draft we had communicated to the Committee that in our opinion in order to do full justice to the Disability Rights Authority in terms of putting down its power and responsibilities in full detail it would be appropriate if the Authority was established under a dedicated statute of its own, instead of being made to tag along with the Rights statute. We had pointed out that we felt cramped for space in working out the norms by which representation to the Authority should be worked out and accountability of members obtained. It was due to this substantive constraint along with the lack of time that prevented us from working out the linkages between the DRA and other Authorities in the disability field such as the National Trust and the Rehabilitation Council of India. Dedicated Legislations Since we reached the opinion that the newly established DRA should have its own legislation we also concluded that the National Trust and the RCI should have their own legislations which should spell out the specific tasks each of those authorities should carry out to implement the rights recognized in the New Rights for Persons with Disabilities Act. The National Trust should be the authority which addresses the issue of multiple discrimination and be mandated to proactively formulate policies and programs by which to ensure the equality and non discrimination of persons with disabilities who are so disadvantaged and the RCI could work on HRD. The composition and powers and functions of the three bodies should be so created that it ensures convergence of operation. Transitory Measures The proposed new law recognizes the paradigm of legal capacity with support. It also recognizes the right to life, liberty and integrity of all persons with disabilities. The recognition of these rights requires a reexamination of the Mental Health Act. Even if it is accepted that community living and no force are what is required for all; it is necessary to ask what should be done with the existing institutions and the inmates housed in them. The process of dismantling cannot be done without creating alternative services and there is a need to make a transit legislation which addresses this interim situation. The reason for making the transit legislation comes from the main law but to allow coherent operation and efficient implementation of these transitory measures it is better that they are contained in a separate legislation. Demands for Comprehensive Legislation and Protection of Interests of Most Marginalized The Committee and consequently the legal consultant has been faced with two demands: one, seeking a comprehensive all inclusive legislation; and the other asking that the interests of the most marginalized persons with disabilities should not be compromised and sidelined. The reason for seeking a comprehensive legislation as we understand is to ensure convergence in the operation of various authorities in the field and to make for more effective implementation. Whilst the group asserting the interest of the marginalized accepts the need for convergence, it fears that if such convergence is obtained in one comprehensive legislation, which absorbs all authorities then the voices of the more organized groups could drown their concerns. Convergence in Disability Code It is in the wake of these equally valid concerns that it was suggested that a Disability Code may be formulated which could be a legally accepted and efficient way of bringing convergence along with accommodating difference. The difference between a Code and multiple legislations in a field is that the Code has a common philosophy; common grammar and a concerted effort to ensure that each part fits into a cohesive whole. Thus for example there are number of legislations on children which occupy the field today but they do not make a Children Code because the cohesiveness of philosophy, grammar and the convergence between authorities is absent.
The difference between a Code with multiple legislations and a single comprehensive legislation is that a Code with multiple legislations allows each area to obtain the detailed and dedicated attention it requires. The Companies Act; the Income Tax Act are examples of legislations which are comprehensive but whose very comprehensiveness becomes a barrier to their efficient implementation. A Code with multiple legislations makes it easier to undertake capacity building and awareness raising of the law and it ensures that the interests of the marginalized groups are not submerged in the bulk of a large legislation. 2.Legal capacity On legal capacity Bhargavi’s paper as presented at the National Convention organised by DRG, New Delhi, 1-3rd December If a blind person goes to a health service, and gets very angry at the way he or she was treated there, he would be seen as an “angry” person. That’s all. But not so, someone who is in treatment for a psychiatric problem: If he or she expressed their anger at not being treated well in a mental health facility, that would be seen as an escalation of ‘symptoms’ and SOS treatment started... sedation, shock treatment, solitary confinement, institutionalisation, upping of dosage, further curtailments of other civil political rights. Legal capacity is the focal point of exercising self determination and choice. Either you have it or you don’t. As human beings we all have legal capacity. That is a natural endowment. There should be no debate whether such a right should be ‘given’ to someone or not. Legal capacity is not a continuum. “You can’t be a little pregnant or more pregnant” (citing Mr. Gabor Gombos, Hungarian Human Rights Defender and present UN committee member). So also, you cannot have a little legal capacity, or more legal capacity. Legal capacity is an inalienable natural right. If we acknowledge human diversity, people in different contexts need different kinds of support at different times. It is up to us as a human society to provide those supports. We cannot say, ‘how much support this person needs, that much legal capacity must be subtracted from that person’. There is no mathematical formula between support needed and legal capacity. There is no inverse ratio. Legal capacity is the universal assumption of the UNCRPD and the new Act. The PWDA is totally silent on legal capacity. There are neither affirming provisions, nor limiting provisions. The new Act proactively provides for full legal capacity for all persons with all disabilities. Today, there is advocacy from some sections of society to restrict legal capacity for people with “high support” needs. Concepts of “restricted LC”, “limited guardianship” or “limited substitution of decision making” are being argued for. When push comes to shove, who are these people with “high support” needs: Advocacy is coming from 2 groups- care givers of people with developmental and intellectual disabilities; and of people living with a mental illness. Groups of care givers of people seen as having “high support” or attributed to having high support needs have used the existing “incapacity” legal regime. Why this discrimination within the sector, that most persons with disabilities can make their own decisions and have control over their lives; while some, as a group, cannot? Genuine inclusion within the disability sector requires our addressing this question. Universal legal capacity is the fundamental assumption of the new Act, along with equality and non-discrimination. If we place restrictions on the LC provision, that will compromise every single provision of rights in the Act. What the right hand gives, the left hand would have taken away. A limitation provision on rights cannot appear on the same provision / page / law as the granting of the right. Analogous situation prevailed with respect to “progressive realization”: Providing for “Progressive realization” in the UNCRPD would have taken away what any right provided for. [Within the scope of a single law, we cannot say, Provision A gives Full LC; and Provision B restricts A. LC is not like buying 1 kilo of potatoes, and then giving quarter kilo back.] If the sector demand is for limited LC, we must be open to another law with such restrictions. It is a contradiction to say we want comprehensive law on ALL rights of ALL persons with ALL disabilities, and place restrictions within it. To place restrictions of LC within new Law will COMPROMISE ... ALL rights of ALL persons with ALL disabilities. E.g. future scenario where restricted LC is put within the comprehensive law: Blind person approaches integrated disability and health services, gets angry at the way he or she was treated by the service provider. MH professional available at the service is brought in, and person is diagnosed as not safe for self or others (as happens widely in the MH sector). The disabled person is seen as “lacking insight / capacity”, and is forcibly treated with sedation, shock, SOS medicines, and “kidnapping” to the local mental asylum. Who is seen as “high support” becomes subjective and people in dominant positions in society will decide that. In a structured society, where persons with disabilities are marginalised, this provision will be used against them. Restriction of LC is a threat to everybody. When no criteria exists on “high support”, everybody will be pulled into the diagnosis of “high support”, “incapable”, “lacking insight”, “risky to self”, “risky to others”, “violent and dangerous”, etc. and stereotypes hitherto marked only for persons living with mental illness will now be extended to all persons with all disabilities. The degree and scope of marginalization will increase. Finally, how many persons living with a mental illness have we seen in disability or other meetings? Where are they? Their LC being severely restricted, they are house bound or inside institutions. LC is also the most restricted for people living on society’s margins... the poor and the homeless. It is this restriction that brings them into institutions of different sorts (beggars’ home, police custody, prisons), without providing any other kind of relief. This status quo will remain if LC is restricted under the new Law. We, PLMI, are grateful for the inclusion efforts by various disability groups and coalitions, including DRG, HRLN, CBR forum, etc. With this inclusion, we also appeal strongly that LC be unconditional. Let this not be a subject of future debate. THANK YOU. 3. The latest draft of 6th Dec the Mental health care act 2010 was given and they want this draft to be scrapped. No discussion, It should be scrapped as it is against spirit of UNCRPD Now what I found was the mind of most of the participants who organise this event have already made up and the other participants are called to rubber stamp the concept notes already prepared. I did not find any scope for divergent views or even expressing divergent views and discussion. So i preferred not to attend. This is for your kind information. "Greatness lies not in never falling but in rising everytime we fall" Captain Johann samuhanand, BANGALORE INDIA 91 80 42023252 www.captainjohann.blogspot.com From: Amrit Kumar Bakhshy <[email protected]> To: [email protected] Cc: Sent: Wednesday, 15 December, 2010 11:37:02 PM Subject: [MhaReformIndia:264] Winds of change If winter comes, can spring be far behind? NAAJMI in partnership with Action Aid organized a regional level consultation in Pune on 13th-14th of this month. The consultation was to focus on the New Disability Draft Legislation and the Mental Health Act and proposed amendments in the context of UNCRPD. When the consultations were planned, the draft document of the proposed Mental Health Care Act was not out and therefore the second amendments were circulated to the participants. The organizers, however, took cognizance of this late development and the presentation was based on the draft document of the proposed MHCA. The participants were from various NGOs in Maharashtra working in disability sector including mental health sector. I was happy to see quite a few disabled amongst them. Most of them were working at the grass root level and were not familiar with the disability laws and the reform process taking place. The organizer therefore spent most of the time explaining in simple language the UNCRPD, the disability laws and the drafts of the new laws proposed. The presentations were made by Amita Dhanda and she was supported by Bhargavi Davar. Next week high level regional consultations are planned which are likely to be attended by bigwigs of the disability sector. Based on the presentation made by Amita Dhanda and the discussions I had with her, I would like to share my impressions with the Group of what NAAJMI’s views are in regard to Mental Health Law. 1. I sensed a softening of approach and keenness to move forward. 2. There were serious reservations in regard to the first and the second draft to the extent that NAAJMI was not willing to participate in regional consultations. 3. The Draft Document on MHCA is considered a marked improvement on the earlier drafts. 4. NAAJMI is now willing to have a dialogue and accepts that through dialogue issues can be resolved. 5. It is accepted that the 6th December document makes a good presentation. But while the icing put is thick and nice, the cake remains the same. 6. Reservations to involuntary admissions. 7. A transitional arrangement to phase out the present system of institutionalization. 8. Institutionalization for custody purpose is opposed. 9. The draft MHCL requires PwMI to establish competence to make decision. In law a person is treated as competent unless proved otherwise. PwMI should be treated on an equal basis with others. 10. For making an Advance Directive or for appointing a Nominated Representative, the document is proposed to be signed by a medical practitioner which is discriminatory. While a person may choose to have a witness who is a doctor as is recommended while executing a will, it should not be a requirement. If someone believes that when the AD was made or NR was appointed, the person doing so was not competent, it is for him to prove so. 11. The draft provides for duties and rights of NRS. There is one duty and 7 rights. There should be an elaborate list of duties and responsibilities. 12. An order of precedence is given for appointment of NR if no such appointment is made by a person. But there is no provision for the person to change such NR appointed from the order of precedence, if he or she so wants to do so at a later date. 13. While there is a chapter on rights of PwMI, the effect is diluted with many exceptions added. The above is what I recollect. I must have missed a few and/or I might not have understood correctly some of the points made. However I can say that there was definitely positivity and a dialogue should help in clarifying the doubts and bridging the gaps. I am encouraged by the impressions I gained. It will be a great service to the MH Sector if we carry forward the mission with one voice accommodating each others’ view point. What P.B.Shelly said in the concluding lines of 'An Ode to West Wind' should happen.It may not be wrong to say that stars are aligning and favourable winds have started blowing. I am sanguine. -- Every passion in isolation is insane, therefore sanity is the synthesis of insanities. -- You received this message because you are subscribed to the Google Groups "Mental Health Advocacy (Reform) India" group. To post to this group, send email to [email protected] To unsubscribe from this group, send email to [email protected] For more options, visit this group at http://groups.google.com/group/MhaReformIndia?hl=en ------------- Affiliated Groups : MENTAL HEALTH ADVOCACY INDIA [email protected] Discussions on mental health law / policy / plan monitoring / human rights etc [email protected] India-specific news and views related to mental health [email protected] Information and support to carers of people with mental health issues [email protected] Mutual support and sharing of experiential knowledge, skills and social learning amongst peers -- You received this message because you are subscribed to the Google Groups "Mental Health Advocacy (News 'N Views) India" group. To post to this group, send email to [email protected] To unsubscribe from this group, send email to [email protected] For more options, visit this group at http://groups.google.com/group/MhaNewsViewsIndia?hl=en ------------- Affiliated Groups : MENTAL HEALTH ADVOCACY INDIA [email protected] Discussions on mental health law / policy / plan monitoring / human rights etc [email protected] India-specific news and views related to mental health [email protected] Information and support to carers of people with mental health issues [email protected] Mutual support and sharing of experiential knowledge, skills and social learning amongst peers
