------------------------------ *From: * "Secretariat NCPEDP" <[email protected]> *Date: *Thu, 17 Mar 2011 19:51:26 +0530 *To: *<[email protected]> *Cc: *'KM Acharya'<[email protected]>; 'Sudha Kaul'<[email protected]>; 'Poonam Natarajan'<[email protected]>; 'Gen. Ian Cardozo'< [email protected]>; 'Amita Dhanda'<[email protected]>; 'G. Syamala'< [email protected]>; 'Bhargavi'<[email protected]>; 'Rajiv Rajan'< [email protected]>; 'Narayanan NAD'<[email protected]>; 'Vandana'< [email protected]>; 'Shanti Auluck'<[email protected]>; 'Dr. Achal Bhagat'<[email protected]>; 'Nirmala Srinivasan'<[email protected]>; 'Radhika Alkazi'<[email protected]>; 'Keshav'<[email protected]>; < [email protected]>; 'mhgroup'<[email protected]>; < [email protected]>; 'Javed Abidi'<[email protected]>; < [email protected]> *Subject: *RE: Fw: LEGAL CAPACITY AND THE RIGHTS OF PEOPLE LIVING WITH MENTAL ILLNESS
Dear Mr. Bakhshy, Thanks for your E-mail. In response, I would just like to clarify that: 1. The present draft MHCA is practically speaking a ‘new law’ and has nothing to do with the earlier drafts, which were more like draft ‘amendments’ to the present Mental Health Act. 1. I am aware that the present draft MHCA has been widely welcomed by the mental health sector but people living with mental illness (PLMIs) are still quite unhappy with it. And no draft law can or should became an Act unless by & large all stake holders are reasonably okay with it. 1. As a person with disability, I lean more towards my PLMI friends but * PLEASE* be assured that I do understand the pain or difficulty that parents of disabled people face. So, it is not that I am totally closed or shut to their voices. Again, please trust me when I say that I am listening and listening very carefully to everything that you all are saying. 1. If you please read my letter to Mukul Wasnik again, you will notice that I am not taking my particular or extreme position. Yes, I used the word ‘caged’ and even you will agree (I hope) that a very very large number of PLMIs are ‘caged’ in the hundreds of asylums all over the country. There is enough & more evidence to that effect. So, here we are *not* talking of an educated and loving father such as yourself or a concerned mother like Nirmalaji but of those thousands & thousands of unknown people who have languished in very bad circumstances and inspite of all the fury created by Supreme Court, NHRC and countless other panels from time to time, things just never changed. 1. My letter to Mukul Wasnik is neither pro PLMIs nor anti Carers. Honestly, I’d like to be friends with both the groups, perhaps be a bridge if I possibly can. My letter to Mukul Wasnik exposes the ineptness of his Ministry and his Committee. My letter to Mukul Wasnik exposes the fact that two Ministries of the same Government have come out in public domain with diametrically opposite points of view on ‘Legal capacity”. My letter hopefully will shame MSJE into beginning a serious dialogue with the Ministry of Health. My letter points out directly at the White Elephant in the Room which nobody was wanting to acknowledge! They can’t do that now. They will have to confront the problem and come out with a solution which hopefully will be accepted by one and all. My letter is an endeavour to push them/nudge them, perhaps force them to attend the 22nd March Consultation. Let’s see if MSJE deputes a senior person from their side to the Consultation. Let’s see if Chairer of the New Law Committee, Dr. Sudha Kaul and their Legal Consultant, Dr. Amita Dhanda have the courage of conviction to come to the Consultation and explain and defend their position. Both have been invited! With warm & personal regards, Javed 17.3.2011 ------------------------------ *From: *Amrit Kumar Bakhshy <[email protected]> *Date: *Wed, 16 Mar 2011 11:31:00 +0530 *To: *Javed Abidi<[email protected]> *Cc: *KM Acharya<[email protected]>; Sudha Kaul<[email protected]>; Poonam Natarajan<[email protected]>; Gen. Ian Cardozo<[email protected]>; Amita Dhanda<[email protected]>; G. Syamala<[email protected]>; Bhargavi<[email protected]>; Rajiv Rajan<[email protected]>; Narayanan NAD<[email protected]>; Vandana<[email protected]>; Shanti Auluck<[email protected]>; Dr. Achal Bhagat<[email protected]>; Nirmala Srinivasan<[email protected]>; Radhika Alkazi<[email protected]>; Keshav<[email protected]>; <[email protected]>; mhgroup< [email protected]> *Subject: *Re: Fw: LEGAL CAPACITY AND THE RIGHTS OF PEOPLE LIVING WITH MENTAL ILLNESS Dear Javed Saheb, We have great regard for you and we admire your commitment and yeomen services to the persons with disability. The concerns expressed in your letter to the Hon' Minister for SJE. are generally shared by the community. But I would request you to have another look at the draft MHCA and the process it has gone through. Your perception may change and misgivings removed. Notwithstanding the mastery over the language that you have, please pardon me for saying that some time you tend to use/choose words (such as caging) which though powerful sound inapt and insensitive. Let me state a few things about which most of us in the mental health sector are convinced : 1. MHFW has conducted the whole exercise of drafting amendments and later the draft act in a systematic, professional, transparent and time bound manner. 2. The Drafting Team have worked on it selflessly and tirelessly without any monetary compensation and they have been receptive to all the suggestions given to them. Of course we do not expect them to accept all that we want. 3. The senior officials of the MHFW have been accessible to all those who wanted to write to them or to meet them. They have also found time to interact with people outside the capital whenever they happened to visit those cities. 4. The first draft of the MHA was fully compliant with the UNCRPD but the compliance lacked visibility. Those who alleged that the draft act had zero compliance, only made statements; they never substantiated their allegation. 5. The second draft amendment document looked out of shape and some what clumsy. The draft act (third amendment) is now a precise document; chapters have been neatly arranged and the UNCRPD compliance can be well noticed. 6. *Contrary to your perception,the care givers are not happy.The feeling is that the way the Article 12 is being interpreted and implemented, replicating the western model and without taking into account our ethos and culture, will adversely affect the great institution of family caregiving in our country. * 7. *Your calling admission in a mental health facility as 'forcible caging' reminds me of Prospero in 'The Tempest'. The MHA 1987 which some of us call draconian provides for 90 days admission (not custody) for a person who is unable to request for his or her admission because of high support needs, on the basis of an application made by a relative or friend with two medical certificates, one of which should be from a government doctor and subject to medical officer incharge being satisfied that it is in the interest of the PwMI. * 8. *Section 45 of the draft MHCA provides for admission and treatment of PwMI with high support needs up till 30 days upon application of the NR and subject to two MHPs of whom at least one should be a psychiatrist concluding based on their assessment not older than a week that the PwMI has symptoms so severe that there has been violence or threat/attempt to cause bodily harm to self or to others and he/she lacks competence to a degree that it makes him/her vulnerable to harm self and/or others. Will you call this 'caging'? This is a protected/sheltered environment for PwMI provided based on professional judgement and the view of the NR that it is the least restrictive care option in the circumstances. This is in accordance with the spirit of Article 12 (4). It cannot be the intention of the authors of UNCRPD that the PwMI in need of high support should be left alone, without any protection/shelter, with high possibility of physical harm to themselves/others.* 9. *It needs to be appreciated by all particularly the HRA that the PwMI have some special needs and the yard stick for other disabilities can be applied to them only mutatis mutandis. * *Please forgive me for 'chota munh baadi baat'; but I thought I must share with you what I feel.* Kind regards, Amrit On 14 March 2011 10:46, Nirmala Srinivasan <[email protected]> wrote: Dear Javed, thanks for the updates and here are my views on your mail addressed to the Minister. *1.* At the outset, my honest observation is that you should go thru the old Act and the revised new MHC Act carefully once more to identify some misinterpretation on your side. This suggestion is based on the recommended readings below. *Canada : Declaration and Reservation** *Canada recognises that persons with disabilities are presumed to have legal capacity on an equal basis with others in all aspects of their lives. Canada declares its understanding that Article 12 permits supported and substitute decision-making arrangements in appropriate circumstances and in accordance with the law.To the extent Article 12 may be interpreted as requiring the elimination of all substitute decision-making arrangements, Canada reserves the right to continue their use in appropriate circumstances and subject to appropriate and effective safeguards. With respect to Article 12 (4), Canada reserves the right not to subject all such measures to regular review by an independent authority, where such measures are already subject to review or appeal." (all emphasis mine) *Australia: Declaration** *"Australia recognizes that persons with disability enjoy legal capacity on an equal basis with others in all aspects of life. Australia declares its understanding that the Convention allows for fully supported or substituted decision-making arrangements, which provide for decisions to be made on behalf of a person, only where such arrangements are necessary, as a last resort and subject to safeguards; Australia recognizes that every person with disability has a right to respect for his or her physical and mental integrity on an equal basis with others. Australia further declares its understanding that the Convention allows for compulsory assistance or treatment of persons, including measures taken for the treatment of mental disability, where such treatment is necessary, as a last resort and subject to safeguards; " (all emphasis mine) available on the UN website - http://www.un.org/disabilities/default.asp?id=475 *Additional readings are in the 2nd and 3rd attachment on Argentina and Hungary respectively. * *Read MHC Act after doing the above readings and re-examine your conclusions. * To the best of my knowledge , the draft New Bill of the MoSJE does not propagate any concept of Legal capacity except repeat the UN CRPD.. The Disability sector has paid heavily on account of this lacunae. Unfortunately, even now most of us misconstrue legal capacity to be equal rights under the Law ; or worse still, awareness of the laws of the land. This is totally incorrect. *In case you find time, you may like to go thru the 1st attachment to this mail. Gerard Quinn was one of the architects of CRPD. * Furthermore , the New Bill of the RPD Act 2011 effectively outlaws any treatment of mental illness unless the PwMI consent, whether or not they are in a state of mind to give or refuse consent. For example, a person with schizophrenia who is hallucinating and in need of treatment will now be denied treatment, when he/she is not in a position to make a rational decision, due to the New Bill's interpretation of legal capacity - Section 9A. Furthermore, the extreme position of Legal Capacity in the New Bill means that persons with mental illness who commit any criminal act, will not be able to plead diminished responsibility but will be exposed to the full force of the Law even when they were evidently not in a state of mind to comprehend what they were doing. Sec 9A (1) removes all the existing protections in the Indian legislation on diminished responsibility).. *2.* I agree with you that a dialogue is due between the two Ministries.However, what is obvious to me is delays caused by the in-fighting among the NGOs both inside and outside the Committee. For example, many issues could have been resolved amongst the NGOs about the Single vs Multi legislation's had not some NGOs boycotted the Regional Consultations of the MoHFW. May be we would have gained a lot more for Cross-disability advocacy than at present. *Even now it is not too late*. Why not we show the way to the Officials by more positive and proactive , constructive role than what all of us are doing at present. TN Consultations is a sad day for the Disability sector.Javed, you know the old saying about glass houses ! *3.* *Single vs Multiple laws : I stronly believe that separate laws with strong emphasis on a uniform theme of Rights based legislations is most practical and also suited to deliver goods in the context of the admin machinery and the federal polity in our country. *It is more than a decade since the PDA was passed. Even today the Disability officials are struggling to provide DCs to all disabilities, particularly to MI. Can you imagine them grappling with healthcare services especially for those with mental disorders? *I justify a seperate MHC Act and that it must be monitored only by the MoHFW. Multi laws is not per se an invalidation of CRPD. * .................. *and I do sincerely hope that all of us shall campaign for Unity and Integrity to merit Rights and Justice! * thnx and best wishes nirmala On Sun, Mar 13, 2011 at 4:05 AM, <[email protected]> wrote: FYI Sent on my BlackBerry® from Vodafone -----Original Message----- From: [email protected] Date: Sat, 12 Mar 2011 22:34:30 To: Mukul Wasnik<[email protected]>; Mukul Wasnik<[email protected]> Reply-To: [email protected] Cc: KM Acharya<[email protected]>; Sudha Kaul<[email protected]>; Poonam Natarajan<[email protected]>; Gen. Ian Cardozo<[email protected]>; Amita Dhanda<[email protected]>; G. Syamala<[email protected]>; Bhargavi<[email protected]>; Rajiv Rajan<[email protected]>; Narayanan NAD<[email protected]>; Vandana<[email protected]>; Shanti Auluck<[email protected]>; Dr. Achal Bhagat<[email protected]>; Radhika Alkazi<[email protected]> Subject: LEGAL CAPACITY AND THE RIGHTS OF PEOPLE LIVING WITH MENTAL ILLNESS Dear Shri Mukul Wasnik ji, As you may be aware, Ministry of Health has decided to abandon the old Mental Health Act and they too are going in for a New Law. Their semi final draft is there in the public domain for some time now and is attracting a lot of attention and comments. The broad feedback from the Mental Health sector is that it is certainly better than the old draconian Mental Health Act. Caregivers seem to be quite happy with the new draft. However, PLMIs are extremely angry and upset. They strongly believe in the concept of full legal capacity and feel that the new draft also goes against the tenets of UNCRPD. As someone explained to me the other day, the old Act could forcibly cage people for upto 90 days; whereas the new draft envisages caging people for upto 30 days. And, the signature of two psychiatrists is enough to make that happen! The draft new disability rights law under your Ministry propagates the concept of full legal capacity. And obviously this view is diametrically opposite to what the Health Ministry has proposed in their draft law. So, which view will ultimately prevail? What is Government of India's position on Legal Capacity and the rights of people living with mental illness? The time has come, Sir, to settle this extremely complex and yet critical matter. Logically, this should have been settled long ago! That's why we have been saying that your Committee failed to discuss, debate and settle substantive issues. No attempt was made. The NGO leaders in whom you placed your trust, were just too happy in each other's company, listening to each other's voices and patting each other's back. Neither did they listen to people with disabilities, nor did they engage with the bureaucracy. You can yourself find out as to how many of the Committee meetings were attended by the Joint Secretary of the Health Ministry. Probably not even one! No wonder this huge gap between the position of the Health Ministry and the MSJE Committee. I am told that the Health Ministry has sent their draft law to your Ministry quite some time back. But so far, there has been no response! Health Ministry is waiting for MSJE's feedback. Is it sheer lethargy on the part of your officials or is it a clever ploy to keep the issue hanging or is it that nobody in your Ministry has actually understood the issue and therefore, are simply in no position to give a coherent response?! In the meantime, the Health Ministry has moved ahead. They are organising a National Consultation in New Delhi on 22nd March. Your Ministry too has been invited. Will anyone go? Will you ask Secretary, KM Acharya to either go himself or depute someone senior and knowledgeable?? Will you ensure that MSJE's position on Legal Capacity is spelt out at this very important Consultation??? I am told that Chairer of the New Law Committee, Dr. Sudha Kaul as well as the Legal Consultant, Amita Dhanda have both been invited. Will they go? Will they attend the Consultation and illustrate and defend their position on full Legal Capacity?? As I said earlier, these were/are substantive issues that ideally should been settled long long ago. Your Committee should have engaged actively with the Ministry of Health and tried to build a consensus. That did not happen. Net result: two Ministries of Dr. Manmohan Singh's government come out with two different drafts with two bang opposite positions on Legal Capacity!!! Now that you are seized of the issue, please take matters firmly in your own two hands. With good wishes and regards, Javed Abidi 12.3.2011 Sent on my BlackBerry® from Vodafone -- nirmala srinivasan(ashoka fellow) director, ACMI bangalore -india +91 9886031659 -- Every passion in isolation is insane, therefore sanity is the synthesis of insanities. ------------------------------ No virus found in this message. Checked by AVG - www.avg.com Version: 10.0.1204 / Virus Database: 1498/3509 - Release Date: 03/15/11 -- You received this message because you are subscribed to the Google Groups "Mental Health Advocacy (News 'N Views) India" group. 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