Tuesday, July 23, 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. 

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