Tuesday, August 27, 2013

Deaf medical student denied Interpretor during clinical training

Dear Colleagues,

The lawsuit deals with the accommodations that needs to be provided to persons with disabilities  to ensure an equalizing environment. An interesting read from the New York Times.

Deaf Student, Denied Interpreter by Medical School, Draws Focus of Advocates

By JOHN ELIGON
Published: August 19, 2013

Speaking with the parents of a sick infant, Michael Argenyi, a medical student, could not understand why the child was hospitalized. During another clinical training session, he missed most of what a patient with a broken jaw was trying to convey about his condition.

His incomprehension, Mr. Argenyi explained, was not because of a deficiency in academic understanding. Rather, he simply could not hear.

Mr. Argenyi, 26, is legally deaf. Despite his repeated requests to use an interpreter during clinical training, administrators at the Creighton University School of Medicine in Omaha, Neb., have refused to allow it. They have contended that Mr. Argenyi, who is able to speak, communicated well enough without one and that patients could be more hesitant to share information when someone else was present. They added that doctors needed to focus on the patient (not a third party) to rely on visual clues to make a proper diagnosis.

Mr. Argenyi took a leave of absence at the end of his second year, in 2011, after suing Creighton for the right to finish his medical training with an interpreter. The case, scheduled to go to trial on Tuesday in Federal District Court in Omaha, is attracting the attention of the federal government and advocates who are concerned that it could deal a setback to continuing efforts to achieve equality for people with disabilities.

“I couldn't understand so much of the communication in the clinic,” Mr. Argenyi wrote in an e-mail. “It was humiliating to present only half of a history because I had missed so much of what was communicated. I was embarrassed every time I would miss medicine names that I knew from classes but couldn't understand when the patient or a colleague spoke them.”

Despite making tremendous strides over the past four decades with the passage of the Rehabilitation Act and the Americans with Disabilities Act, those with disabilities remain underrepresented in higher education and in the work force. In the medical field, people who are deaf or hard of hearing remain less likely to hold high-skilled positions than those without impairments.

Universities tend to provide requested accommodations after admitting a student who they know has a disability, proponents for the deaf say. And most arrangements for the deaf are settled long before any issues reach a courtroom, said Curtis Decker, the executive director of the National Disability Rights Network, a federally financed association of legal services programs.

But, he said of Mr. Argenyi’s lawsuit, “It’s a very important case because, I think, if it’s successful it will send a very powerful message to the university community that the law does cover them and the law is clear about the accommodations that they need to provide.”

Creighton officials maintain that they have provided Mr. Argenyi with the necessary tools for him to succeed in medical school.

“Michael Argenyi is a very bright, capable young man who Creighton believes will make a good doctor,” said Scott Parrish Moore, the lead counsel for Creighton.

After being accepted to Creighton four years ago, Mr. Argenyi asked the university to provide a real-time captioning system for lectures and a cued speech interpreter. (Mr. Argenyi, who does not know sign language, can read lips. An interpreter helps by mouthing words while using hand signals to clarify sounds.) These were the same accommodations that Mr. Argenyi, who had a diagnosis of profound deafness when he was 8 months old, received for much of his schooling, from grade school through undergraduate studies at Seattle University.

Creighton provided Mr. Argenyi with just one of the aides that his audiologist had recommended — an FM system, which amplifies the sounds he hears in cochlear implants. The university also provided note takers for lectures, priority seating and audio podcasts.

Soon after classes began, Mr. Argenyi told school officials that the accommodations were inadequate and that he was missing information. He sued in federal court in Omaha in September 2009, arguing that the university was legally required to pay for and provide necessary aides.

Mr. Argenyi said he hired his own interpreter and transcription service, which cost him more than $100,000 during his two years in medical school. The breaking point, he said, came during his clinical work in his second year when Creighton refused to allow him to use an interpreter, even if he paid for it himself. The university did allow Mr. Argenyi to use interpreters during a couple of clinics while the Justice Department was trying to broker a settlement, but stopped when a deal could not be reached.

Mr. Argenyi is pursuing degrees in public health and social work at Boston University, which is providing his requested transcription services, while the lawsuit is pending.




Monday, August 19, 2013

SC directs the Govt. to give suitable jobs to employees with Mental Illness

Dear Colleagues,

In a path-breaking development, the Supreme Court while quoting Section 47 has set aside the Order of Compulsory retirement of the 1977 batch IAS officer and directed DoPT to pay him the full salary, except the subsistence allowance already received, for the period from the date of initiation of departmental proceeding till his date of superannuation.

Though, the Supreme Court has done some justice with the case, but it is loo late and too less. The said has been suffering at the hands of whimsical department who not only suffered at the hands of inquiry committee instituted in 1993 that took 11 years to give its finding declaring him insane. The officer was compulsorily retired thereafter.

There are various candidates who, having lived with mental illness and rehabilitated after a regular course of medication are not given any benefit of reservation or of preference in appointment in the civil services or any other service under the government. The draft of new Act though includes mental illness as one of the condition eligible for reservation in jobs under the disability quota however, one never know how long will this process take for the law to take shape and extend benefits to those living with disabilities not included in the existing Act. The act itself is discriminatory towards many other conditions since it is based on a medical model and goes strictly by the medical conditions, hence in effect renders many others excluded though equally or more marginalized and disabled.

Here is the news coverage from Hindustan Times.

Bhadra Sinha, Hindustan Times  New Delhi, August 19, 2013

State administration cannot dispense with ore reduce rank of a government servant if he or she acquires disability including mental illness or retardation during service, the Supreme Court has ruled.

Quoting the provisions of The Persons with disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 a bench of Justice GS Singhvi and Justice SJ Mukopadhyaya held that if a person is found unsuitable for the post he or she holds on account of acquired disability during service, he or she should be moved to another post suitable to his or her state.

The bench further held that under section 47 of the Act if it wasn't possible to adjust such a person against any post, the government authority ought to keep him or her on a supernumerary post until a suitable one is available until the employee attains the age of superannuation.

With these observations the court recently directed the Union Ministry of Department of Personnel and Training (DoPT) to pay consequential benefits to a 1977 batch IAS officer, Anil Kumar Mahajan, who was compulsorily retired from service on October 15 2007 after a disciplinary inquiry declared him insane. The inquiry report came 11 years after it was instituted in 1993 when he worked with the Bihar government.

At the time of inquiry the officer was placed under suspension twice. His representation for a voluntary retirement was turned down by the DoPT on the ground he hadn't completed the minimum service of 20 years. Later, however, the ministry compulsorily retired him.

Mahajan later challenged the findings of the disciplinary proceedings before the Central Administrative Tribunal, which turned down his plea.

However, on his appeal the SC set aside the order of compulsory retirement and said: "The appellant was appointed in the service of respondents as an IAS officer and joined in the year 1977. He served for 30 years till the order of his compulsory retirement was issued on October 15, 2007. It is not the case of the respondents (DoPT) that the appellant was insane and in spite of that he was appointed as an IAS Officer in 1977."

Observing "some problem was going on between the appellant and authorities of the state (Bihar)," the court said: "In view of the aforesaid finding, we are of the view that it was not open to the authorities to dispense with the service of  appellant or to compulsory retire him from service."

The court further said: "The High Court also failed to notice the relevant fact and without going into the merit allowed the counsel to withdraw the writ petition merely on the basis of the finding of Inquiry Officer."

Since in normal course Mahajan would have retired from service on July 31, 2012, the SC directed DoPT to pay him the full salary, except the subsistence allowance already received, for the period from the date of initiation of departmental proceeding till his date of superannuation.




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.





Sunday, August 4, 2013

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.